Search

Answer: As to whether you or the resident is responsible for the condition of the ground upon which the home sits, it depends on whether the infestation existed at the time of commencement of the tenancy. If “yes,” the it’s your responsibility to abate; if “no” then it’s the tenant’s responsibility.  Here is a summary of the applicable statute.  I have highlighted that portion of the law which applies to your issue:

ORS 90.730 [Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition.] provides in relevant part:

• A landlord who rents a space for a manufactured dwelling shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition.
• The landlord does not have a duty to maintain a dwelling or home.
• A landlord’s habitability duty includes only the following:
  • A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord;
  • If required by applicable law, a drainage system reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;
  • A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord;
  • An electrical supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord;
  • At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;
  • Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of commencement of the rental agreement, and for which the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal; and
  • Completion of any landlord-provided space improvements, including but not limited to installation of carports, garages, driveways and sidewalks, approved under applicable law at the time of installation.
•  A rented space is considered unhabitable if the landlord does not maintain a hazard tree as required by ORS 90.727. 
• A vacant space in a facility is considered unhabitable if the space substantially lacks safety from the hazards of fire or injury.
• A facility common area is considered unhabitable if it substantially lacks:
  •  Buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;
  • Safety from the hazards of fire;
  • Trees, shrubbery and grass maintained in a safe manner; and 
  • If supplied or required to be supplied by the landlord to a common area, a water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord.
•  Note that the landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:
  • The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;
  • The agreement does not diminish the obligations of the landlord to other tenants on the premises; and 
  • The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated.[1]

The term “vermin” is defined as:  “Small insects and animals (such as fleas or mice) that are sometimes harmful to plants or other animals and that are difficult to get rid of.” [http://www.merriam-webster.com/dictionary/vermin] That’s a pretty broad definition, and I’m going to assume that “vermin” include ants.  So the question is, was this condition one that existed at the commencement of the tenancy?  If the resident had been at the space for years and never complained until now, I suspect they [or their exterminator] would have a tough time establishing when the problem first occurred.  As you know, pests come and go; they could be seasonal, weather related, food related, hygiene related, etc.

Chances are that if one resident has ants, others may as well.  Had the resident come to you beforehiring the exterminator, I would have suggested that you find out how widespread the problem was, and if it was prevalent throughout the community [or a specific area within the community]perhaps work out some cost-sharing arrangement along with a periodic maintenance schedule to eradicate the problem. That was not done here.   

However, good community relations suggests that you find out the breadth of the problem, and if it affects several residents, discuss a solution with all of them that works for your pocketbook, and the residents’ budget. Whether you pay for the exterminator for one resident, might set a bad precedent, since it could encourage others to do the same.  That’s why you want to find out the scope of the problem.  

Answer: The Department of Revenue (“DOR”) is treated like any other lienholder. It is critical that before the 45-day letter is sent, the park check with the Oregon Department of Consumer and Business Services (“DCBS”) to determine if there are any lienholders on title. We understand that DOR is now showing up on the DCBS records. Remember, if they show up on the record and you fail to give them notice, they could come back against the park for failing to notify them. If they show up on the DCBS records, they should be copied on the 45-day letter, and given all of the same rights as other lienholders, e.g. entering into a one year storage agreement, paying the storage fees, selling the home, etc. Currently, it is our understanding the DOR does not sign and returned storage agreements. If there is a purchase money lien on the property, it will be superior to the DOR and then it [the DOR] will only get payment if there is any equity from the sale. Since the property is worth more than $8,000, if there is no sale, it would go to auction. As a lienholder, the DOR is behind the park, in terms of payment of cost, and then the county tax collector [which presumably is current – thanks to the DOR]. Next, as a lienholder, the DOR would receive some payment. If there are any further proceeds, they would go to the tenant, and if the tenant cannot be located, then to the county fund. If the landlord follows these procedures, there is no remaining liability to the DOR for and of the taxes paid under the program.

Answer: Here is a quick primer on ORS 90.727, the hazard tree statute, which was enacted in the 2013 Legislative Session:

Oregon Law.

1. Definitions.

• "DBH" means the diameter at breast height, which is measured as the width of a standing tree at four and one-half feet above the ground on the uphill side.

• "Hazard tree" means a tree that:
  • Is located on a rented space in a manufactured dwelling park;
  • Measures at least eight inches DBH; and
  • Is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 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.

1. Habitability. A rented space is considered uninhabitable if the landlord does not maintain a hazard tree required by the 2013 Act.

1. Resident Duties re Trees Located on Space. A resident shall 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.

• "Maintaining a tree" means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future.
• "Removing a tree" includes:
  • Felling and removing the tree; and
  • Grinding or removing the stump of the tree.

4. Landlord Duties re Hazard Trees.

• Landlord shall maintain a hazard tree that was not planted by the current resident if the landlord knows or should know that the tree is a hazard tree;
• Landlord may maintain a tree on the rented space to prevent the tree from becoming a hazard tree;
  • Must provide residents with reasonable written notice and reasonable opportunity to maintain the tree themselves.
• Landlord has discretion to decide whether the appropriate maintenance of a hazard tree is removal or trimming.
• Landlord is not responsible for:
  • Maintaining a tree that is not a hazard tree; or
  • Maintaining any tree for aesthetic purposes.
• A landlord must comply with the access provisions of ORS 90.725 before entering a resident's space to inspect or maintain a tree. [Generally, 24-hour notice. - PCQ]
• Subject to the preceding, a resident is responsible for maintaining the non-hazard trees on the resident's space at the resident's expense.
  • The resident may retain an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture to inspect a tree on the resident's space at the resident's expense;
  • If the arborist determines that the tree is a hazard, the resident may:
    • Require the landlord to maintain the tree as a hazard tree; or
    • Maintain the tree at the resident's expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist's report.

1. Tree Obstructing Removal of Home From Space. If a manufactured home cannot be removed from a space without first removing or trimming a tree on the space, the owner of the home may remove or trim the tree at the owner's expense, after giving reasonable written notice to the landlord, for the purpose of removing the home.

1. Use of Landscape Professional. The landlord or resident that is responsible for maintaining a tree must engage a landscape construction professional with a valid landscape license issued pursuant to ORS 671.560 to maintain any tree with a DBH of eight inches or more.

1. Access to Resident's Space [ORS 90.725].

• An "emergency" includes but is not limited to:
  • A repair problem that, unless remedied immediately, is likely to cause serious physical harm or damage to individuals or property;
  • The presence of a hazard tree on a rented space in a manufactured dwelling park.
• An "unreasonable time" refers to a time of day, day of the week or particular time that conflicts with the resident's reasonable and specific plans to use the space.
• "Yard maintenance, equipment servicing or grounds keeping" includes, but is not limited to, servicing individual septic tank systems or water pumps, weeding, mowing grass and pruning trees and shrubs.
• A landlord or a landlord's agent may enter onto a rented space to:
  • Inspect or maintain trees;
  • A landlord or the landlord's agent may enter a rented space solely to inspect a tree despite a denial of consent by the resident if the landlord or the landlord's agent has given at least 24 hours' actual notice of the intent to enter to inspect the tree and the entry occurs at a reasonable time.
  • If a landlord has a report from an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture that a tree on the rented space is a hazard tree that must be maintained by the landlord under this Act, the landlord is not liable for any damage or injury as a result of the hazard tree if the landlord is unable to gain entry after making a good faith effort to do so.
• If the resident 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 accordance with the Oregon eviction statutes. In addition, the landlord may recover actual damages.

1. Statement of Policy. It shall include the facility policy regarding the planting of trees on the resident's rented space. [See ORS 90.510]

Discussion. It is not clear to me whether your arborist knows what a "hazard tree" is under ORS 90. 727. Cutting the roots may make the tree more dangerous, but under the statutory definition, to be a "hazard tree" it must measure at least eight inches in diameter at breast height ("DBH")[1]. If it does, then you have the primary responsibility. If it does not then your rules would appear to apply.

However, even though the tree is not of sufficient size to be a hazard tree under the statute, I think the discussion merits a closer look. Assuming it was in existence at the time the resident rented the space, what the rule seems to say is that even though the landlord owns the ground and the tree, it becomes the tenant's responsibility once leased. As to small trees and normal vegetation, I can understand this rule. But the larger the tree, the more the argument becomes one of "cost shifting" i.e. requiring a resident to undertake possibly expensive measures (e.g. removing the tree) for the benefit of the landlord's property. This issue, in fact, was the rationale behind the hazard tree legislation.

Oregon law provides that park landlord have certain habitability obligations to residents. ORS 90.730(3)(g) provides:

Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord's duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy; (Italics mine.)

Although the statute does not refer to driveways and other amenities on the space, it does refer to the "dwelling", which includes the skirting. Does the tree root make it "unsafe". Probably not, if safety refers just to personal safety and not safety of the property.

However, ORS 90.135 (Unconscionability) provides that a resident may argue that shifting the responsibility for maintenance of landlord-owned property - in this case - a non-hazard tree not planted by the resident that is causing damage to residents' property, is "unconscionable". The statute provides:

If the court, as a matter of law, finds: (a) A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result; ***

Conclusion. I am not saying management is, per se' responsible. But what I am saying is that this is a risk that is better shouldered by a landlord, than a tenant, especially here, where the tree existed before the tenancy, and it ultimately belongs to the landlord.

Note, this may be an insurance issue. Can the residents file a claim with their carriers for the tree damage? This depends on their coverage. In the final analysis, the tree should be removed, since it will continue to damage the tenants' property. At some point they could file a claim against you for the cost of that damage. Why not remove the tree now and avoid any further issues?

[1] Technically, it is measured at four and one-half feet above the ground on the uphill side.

By Bill Miner and Seth (Moe) Tangman

First, the bad news: Recent uptick in class action lawsuits puts manufactured home park landlords at risk of damages for technical statutory violations.

There has been an uptick in class action lawsuits filed by manufactured home tenants related to submeter or pro rata utility billings passed through from landlords. The recent spate of lawsuits seek damages for noncompliance with statutory invoicing requirements, irrespective of whether tenants were actually overcharged for utilities, or whether any invoicing deficiency is harmless.

ORS 90.560 et seq. governs a manufactured home park landlord’s ability to charge manufactured home tenants for utilities in the State of Oregon and sets forth procedures and billing requirements for submeter or pro rata utility billings to which landlords must comply. ORS 90.582(3)(a)&(b) states that if a landlord “fails to comply with a provision of ORS 90.560 to 90.584, the tenant may recover from the landlord the greater of: . . .One month’s rent; or . . .Twice the tenant’s actual damages, including any amount wrongfully charged to the tenant.” This penalty applies irrespective of whether a tenant actually suffered any overbilling damages or if the landlord’s failure to comply with the invoicing requirements were minimal and otherwise harmless.

Now the good news: The Oregon Supreme Court recently held that the proper measure of damages under ORS 90.582 is not one month’s rent for each violation; rather it’s the greater of one month’s rent or twice the tenant’s actual damages.

In Shephard Investment Group, LLC v. Ormandy, 371 Or 285 (2023), the Oregon Supreme Court was  asked  to  determine  the  proper  calculation  of  damages  that  may  be  awarded  to  a  tenant,  following  multiple instances  of  landlord  noncompliance  with  certain  utility  billing  requirements  that  repeated  each  month,  over  a  series of months. ORS 90.315 governs the inclusion of utility or public service charges such as for sewer or water service, in non-manufactured home park rental agreements. ORS 90.562 (which applies to manufactured home park tenancies) is substantially similar to ORS 90.315.

Both statutes require  landlords  to  “disclose  to  the  tenant in writing at or before the commencement of the tenancy any utility or service that the tenant pays directly to a utility or service provider that benefits, directly, the landlord or other tenants.” Both statutes state that a landlord “may require a tenant to pay to the landlord a utility or service charge or a public service charge that has been billed by a utility or service provider to the landlord”, also known as “pass-through” billing. However, the statutes condition pass-through billing upon a number of procedural requirements, such  as  billing  the  tenant  within  30  days,  setting  out  the  utility  or service  charge  separately  from  rent,  and  providing copies of the service provider’s bill or an opportunity to inspect it to a tenant. If a landlord engages in pass-through billing for public service charges without having met all of the conditions  of  the statutes,  a  tenant  may  recover  “an  amount  equal  to  one  month’s  periodic  rent  or  twice  the  amount  wrongfully  charged  to  the  tenant,  whichever  is  greater.” 

In this case, the landlord  brought  an eviction action  against the tenant to  recover  possession  of  the landlord’s premises. In response, the tenant alleged a counterclaim that landlord  had  failed  to  comply  with  certain  utility  billing  requirements  found  in  ORS  90.315(4)(b).  Specifically, the tenant alleged that, over the previous  year,  landlord  had  failed  to  (1)  timely  bill  him  in  writing for each month’s utility charges, as required under ORS  90.315(4)(b)(A);  and  (2)  provide  him  with  an  explanation  of  the  “pass  through  charges”  in  either  the  written  rental  agreement  or  separate  billings,  as  required  under  ORS  90.315(4)(b)(B). The  trial  court  agreed  with  tenant,  concluding  that  landlord  had  committed  12  separate  violations—one  per  month  - over  the  12  months within the one-year statute of limitations that governs  landlord-tenant actions. The trial court  awarded  tenant  statutory  damages  in  an  amount  equal  to  12  months  of  rent. 

The landlord appealed and the  Court  of  Appeals  reversed,  concluding  that  the  plain  text  of  ORS 90.315(4)(f)  showed the legislature had not intended for each landlord billing violation  to  be  subject  to  a  separate  sanction.

The Oregon Supreme Court affirmed with a thorough analysis, one that you may want to read, if you are so inclined. The crux of the Supreme Court’s logic is that while there may be substantive violations that are ongoing (i.e. not having specific language in a rental agreement and not placing particular language on a utility bill each month), the fact that they are ongoing is more procedural. The allegations complained of in this particular case were procedural, thus the Supreme Court held that the proper measure of damages is not one month’s rent for each violation, but there is one violation that is ongoing.

While this is a good case to address these types of claims, manufactured home park owners would be wise to reach out to their legal advisors who are well versed in manufactured home park law to review their billing practices to ensure that they are complying with the law.

Bill Miner, Partner-In-Charge Davis Wright Tremaine.  Experience includes defending and prosecuting business torts; breach of contract claims; disputes between and among members of limited liability companies; residential and commercial real estate matters, including landlord-tenant, title, lien, and timber trespass disputes; and probate and trust cases.

Moe Tangman is an attorney at Davis Wright Tramaine and applies his firsthand litigation experience to help his clients find business-oriented solutions tailored to resolve their commercial and corporate disputes. He represents clients in complex commercial litigation matters, particularly with respect to real estate, corporate governance, transactions, business tort, and contract disputes. Moe also maintains a robust class-action defense practice, with an emphasis in the data privacy and cybersecurity space.

Answer: Bad news on both fronts. Let me answer your second question first. You may NOT share in a real estate commission unless you have your own Oregon real estate license. This prohibition against commission sharing even applies between real estate agents and the homeowner they represent. Here is the applicable Oregon Law:

ORS 696.290 [Sharing compensation with or paying finders fee to unlicensed person prohibited]

(1)A real estate licensee may not offer, promise, allow, give, pay or rebate, directly or indirectly, any part or share of the licensees compensation arising or accruing from any real estate transaction or pay a finders fee to any person who is not a real estate licensee licensed under ORS 696.022 (Licensing system for real estate brokers and property managers). However, a real estate broker or principal real estate broker may pay a finders fee or a share of the licensees compensation on a cooperative sale when the payment is made to a licensed real estate broker in another state or country, provided that the state or country in which that broker is licensed has a law permitting real estate brokers to cooperate with real estate brokers or principal real estate brokers in this state and that such nonresident real estate broker does not conduct in this state any acts constituting professional real estate activity and for which compensation is paid. If a country does not license real estate brokers, the payee must be a citizen or resident of the country and represent that the payee is in the business of real estate brokerage in the other country. A real estate broker associated with a principal real estate broker may not accept compensation from any person other than the principal real estate broker with whom the real estate broker is associated at the time. A principal real estate broker may not make payment to the real estate broker of another principal real estate broker except through the principal real estate broker with whom the real estate broker is associated. Nothing in this section prevents payment of compensation earned by a real estate broker or principal real estate broker while licensed, because of change of affiliation or inactivation of the brokers license.

(2)Nothing in subsection (1) of this section prohibits a real estate licensee who has a written property management agreement with the owner of a residential building or facility from authorizing the payment of a referral fee, rent credit or other compensation to an existing tenant of the owner or licensee, or a former tenant if the former tenant resided in the building or facility within the previous six months, as compensation for referring new tenants to the licensee.

(3)(a) Nothing in subsection (1) of this section prevents an Oregon real estate broker or principal real estate broker from sharing compensation on a cooperative nonresidential real estate transaction with a person who holds an active real estate license in another state or country, provided:

(A)Before the out-of-state real estate licensee performs any act in this state that constitutes professional real estate activity, the licensee and the cooperating Oregon real estate broker or principal real estate broker agree in writing that the acts constituting professional real estate activity conducted in this state will be under the supervision and control of the cooperating Oregon broker and will comply with all applicable Oregon laws;

(B)The cooperating Oregon real estate broker or principal real estate broker accompanies the out-of-state real estate licensee and the client during any property showings or negotiations conducted in this state; and

(C)All property showings and negotiations regarding nonresidential real estate located in this state are conducted under the supervision and control of the cooperating Oregon real estate broker or principal real estate broker.

(b) As used in this subsection, nonresidential real estate means real property that is improved or available for improvement by commercial structures or five or more residential dwelling units.

As for requiring that residents use your preferred agent, that too is a No-No. Here is that statute [I've underscored the applicable provision in subsection (1).] The term "services" can clearly be applied to real estate brokerage services, and as such, I cannot recommend that you impose that condition on residents when they want to sell their home.

90.525 [Unreasonable conditions of rental or occupancy prohibited.]

(1) No landlord shall impose conditions of rental or occupancy which unreasonably restrict the tenant or prospective tenant in choosing a fuel supplier, furnishings, goods, services or accessories.

(2) No landlord of a facility shall require the prospective tenant to purchase a manufactured dwelling or floating home from a particular dealer or one of a group of dealers.

(3) No landlord renting a space for a manufactured dwelling or floating home shall give preference to a prospective tenant who purchased a manufactured dwelling or floating home from a particular dealer.

(4) No manufactured dwelling or floating home dealer shall require, as a condition of sale, a purchaser to rent a space for a manufactured dwelling or floating home in a particular facility or one of a group of facilities. [Formerly 91.895; 1991 c.844 _7]

 We are in the home stretch of the 2017 Oregon Legislative Session. The target adjournment date is June 23rd, the constitutional deadline for adjournment is July 10th. The actual date will fall somewhere between the two - most likely in late June. Significant budget, tax, transportation issues still need to be haggled over as the legislative session draws to a close.

Nearly all legislative proposals MHCO has been tracking (mostly opposed) have died in committee.

Click Here or at the top of this article  "MHCO Legislative Update"  for links to bill drafts and the status of all bills actively tracked by MHCO.

Two significant legislative proposals addressing manufactured home communities are on their way to the Governor's desk for signature. Here is a summary of these two bills:

SB 277A - This is the landlord tenant coalition bill that was negotiated over several months and addresses changes to disrepair and deterioration. The bill provides clear definitions of disrepair and deterioration as well as making it clear that cosmetic or aesthetic concerns are not disrepair or deterioration. The 30 day cure period is extended to 60 days. The bill also clarifies the responsibility of new residents who purchase an existing manufactured home in the community for repairs including cosmetic or aesthetic concerns as long as those concerns are included in the community rules and the community owner gives written notice to a prospective purchaser before he or she becomes a new resident.

HB 2008A - this bill caused a great deal of anxiety for community owners when it was introduced in January. The original bill contained nearly every legislative concept that MHCO has been fighting against for the past 20 years. MHCO negotiated with John VanLandingham (Lane County Law Center) and Representatives Marsh, Fahey and the House Speaker to reach a compromise that removed nearly all of HB 2008 and replaced it with three issues.

The first issue increases the amount homeowners are compensated when a community CLOSES from $5,000 (single wide), $7,000 (double wide), $9,000 (triple wide) to $6,000 (single wide), $8,000 (double wide), $10,000 (triple wide) and tied future increases in compensation to CPI.

The second issue in the compromise addressed resident-owned communities. USDA Rural Development would like to pilot their 502 1% loan program in resident-owned cooperatives, however, they won't if there are restrictions requiring a lien holder to remove an abandoned or foreclosed MH after 12 months. The compromise will give resident-owned cooperatives the flexibility to negotiate storage terms with lien holders that are beneficial to the cooperative. This, in turn, will allow the cooperative to attract lenders who offer extremely affordable loan products to manufactured homeowners in cooperatives who wish to replace older or unsafe homes with new, energy-efficient ones.

The third issue, when a community sells the new community owner will need to report to the state - the number of vacant spaces and homes in the manufactured dwelling park; the final sale price of the community; the date the conveyance became final; and the name, address and telephone number of the new owner.

Finally, the other issue of great concern to all landlords is RENT CONTROL. HB 2004A (the rent control bill) is in the Senate. In March the HB 2004A passed out of the Oregon House and has had a public hearing in the Senate. Final action on the bill (work session) is scheduled for the end of May. There is no indication what the Senate will do, but a number of Democratic Senators have expressed opposition. At this time all eyes are on the Senate - we should have a good idea later next week on what direction the Senate will take on rent control and the elimination of 'no cause' eviction. We will keep you posted on any developments - all should be revealed within the next two weeks.

MHCO Legal Counsel Phil Querin will do a complete analysis and provide practical advice for all MHCO members (managers and community owners) on these new laws later this summer. In addition all necessary changes to MHCO Forms will be made as well.

If you have any questions or concerns please feel free to contact the MHCO office at 503-391-4496.  

Answer:  By your question, it appears that your community is not submetered.  If it were, the owners of the home would likely recognize the problem and immediately and fix it.

In my experience when water is included as a part of the base rent, most owners really don’t care, and don’t check. But when the community institutes a submetering program, everyone becomes an overnight conservationist. Submetering is a win-win for everyone; the landlord saves money in not having to pay for wasted water, and the residents save in (a) controlling their own water bills, and (b) not having to suffer needless rent increases to recapture the cost of wasted water.

Now to your questions. Clearly, if water is visibly running out of the home, the tenants should be notified and told to fix the problem. They are responsible for their own homes.

As for the less obvious leaking problems, the only way to find out is to survey the tenants on the issue; e.g. do they hear the toilet leaking, for example.[1] Same question for faucets. Next, what about under the home? Has anyone checked lately? I have heard of management offering to do inspections under the home for free, as a part of instituting a submetering program.

But can you require residents take these proactive steps, especially hiring someone to inspect under the home. Except for the rules regarding the siting of home on a space, there are likely no regulations that mandate such action on an ongoing basis – at least if there is no present evidence of leaking. If there is evidence, ORS 90.740 can be relied upon to secure compliance, if nothing can be found in the rules or rental agreement:  

90.740 Tenant obligations. A tenant shall:    

(4) Except as provided by the rental agreement:

      (a) Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;

      (e) Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;

      (f) Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

If the rules do not contain such a provision, consider amending them to add language to address the issue.  Rule changes can be done in a fairly straightforward manner. See, ORS 90.610. Alternatively, even if submetering is not addressed in your rules, you can unilaterally add it to your rental agreements, as a “Plan B”, if you are unsuccessful in implementing the necessary rules.

1. Make sure that the rental agreement really applies to your situation.  The MHCO rental agreement comes in two flavors: (a) The month-to-month (or “periodic”) rental agreement, and (b) the lease (or fixed term) agreement.  The difference is that the month-to-month agreement runs for 30 days at a time.  In the absence of termination, the periodic tenancy just “rolls over” month to month.  Regardless of which agreement is used, landlords renting or leasing spaces to residents in mobile home parks may generally not terminate them without cause.  However, a lease for at least two years carries a distinct advantage in that the park documents, i.e. the lease agreement and the park rules, may be automatically updated at the end of each lease term.  While there are certain limitations upon the landlord’s right to impose new park documents on the resident, it is clearly much easier to do under a lease than a monthly rental agreement. [2]  Also, landlords using a

fixed term lease agreement must expressly incorporate any rent increase provisions into the written agreement.  The rent increase statute, ORS 90.600, applies only to periodic (e.g. month-to-month) tenancies and not fixed term tenancies.  If the home located upon the space is a recreational vehicle rather than a manufactured home, landlords should not use the standard mobile home space rental agreement.  The reason is that the mobile home park section of the landlord-tenant law does not apply to recreational vehicles.[3]  When renting space for a recreational vehicle, landlords should use an appropriate RV rental form.

1. Make sure that the rental agreement is signed by all adult tenants who will occupy the space.  This not only financially obligates them under the agreement, but it makes it easier to enforce violations against rules offenders.  Do not permit occupancy of a home until the rental agreement has been fully signed by everyone.  Trying to get signatures after-the-fact can be difficult, if not impossible.

1. Make sure that the Statement of Policy, Rules, and Rental Agreement are given to the resident and properly receipted for.  Occasionally, residents deny receiving one or more of these documents.  However, the signed receipt by the resident is legal evidence of delivery of these documents.  ORS 90.510(9) provides that a signed receipt is a defense to a claim against the landlord for nondelivery of these documents.

1. Similarly, landlords should make sure that the rights they summarize in the Statement of Policy accurately reflect their rental agreement and rules.  When using the MHCO forms this is not a problem.  It could be, however, when different forms from different sources are used, and the Statement of Policy provides that the resident has (or does not have) certain rights that are not consistent with those found in the rental agreement or rules. The Statement of Policy is not intended to be a binding legal document.  It is supposed to merely summarize the rights and duties of the resident which are found in the rental agreement or rules.

1. Understand the rights given you under the rental agreement form.  Not knowing your rights can result in not enforcing violations, which can lead to a waiver of those rights.[4]

1. One of the more important provisions of the rental agreement form is the one which prohibits assignment, subletting or transfer of possession of the agreement or space without the landlord’s prior written consent.  Landlords should make sure that when a resident vacates, leaving a guest or visitor at the space, immediate action is taken to either terminate the tenancy or require that the occupant promptly apply for tenancy by filling out all required documentation.  Do not accept rent from the occupant, the ex-tenant, or on the occupant’s behalf, until the issue has been thoroughly resolved.

1. Be aware that the fire insurance provision does not apply unless it is specifically checked:  It requires that the resident must maintain a homeowner's policy of insurance that includes coverage for fire in an amount sufficient to replace the home, and permits the landlord to request a current copy of the policy.

1. Similarly, landlords should be sure to have the resident initial those portions of the rental agreement which require them to do so.  There are several such places found in the sections dealing with (a) sale of the home and (b) the resident’s legal obligations under the tenancy.  When these sections are not properly initialed, there remains an argument that it is not binding.  Although such an argument would not likely carry the day, it can be avoided entirely by simply making sure that when the agreement is signed, all internal provisions are properly completed, checked and initialed where appropriate.

1. The landlord’s rights upon a resident’s resale are very important and need to be fully understood by both parties.  One such section of the resale portion of the rental agreement provides that in the event the resident (or their predecessors) has/have made any improvements or alterations to the interior or exterior of the home which did not conform to all applicable local, state and federal building codes or ordinances in existence at the time the work was performed, the landlord has the right to require, as a condition of consent to the sale, that such improvement or alteration be brought up to all applicable local, state and federal building and construction standards in existence at the time of the sale.  When homes have been substantially remodeled, especially where electrical or plumbing systems are involved, this provision may be useful for the landlord to enforce in order to make sure that the proper building codes are followed.

1. Disputes are an inevitable part of being a landlord.  MHCO believes that assigning fault is less important that securing a workable resolution.  Landlords should be aware that Oregon law requires them to have a informal dispute resolution process in their rental agreement.[5]   The MHCO form provides that in the event of any dispute regarding the interpretation or enforcement of the rental agreement or the rules and regulations, either party shall have the right to have the matter handled through the alternative dispute resolution (“ADR”) process set forth in the attached MHCO Addendum, which is incorporated into the agreement.  If a resident request some form of informal dispute resolution, landlords should promptly respond in doing so.

[1] ORS 90.610(2).

[1] ORS 90.245 Provides prohibits the following provisions in a rental agreement: (a) Agreement to waive or forgo rights or remedies under the landlord-tenant law; (b) Agreements authorizing any person to confess judgment on a claim arising out of the rental agreement; or (c) Agreements relieving or limiting a landlord’s liability arising as a result of his or her willful misconduct or negligence or agreements requiring the tenant to indemnify the landlord for that liability or any costs connected therewith.  Any provision prohibited in ORS 90.245 is unenforceable. If a landlord deliberately uses a rental agreement containing provisions known by the landlord to be prohibited and attempts to enforce such provisions, the tenant may recover, in addition to the actual damages, an amount up to three months’ rent.

ORS 90.135 provides that “(1)f the court, as a matter of law, finds (a) A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result****”

[2] See, ORS 90.540, 90.545, and 90.610(3) – (8).

[3] See, ORS 90.505 and 90.100(23).

[4] See, ORS 90.415.

1. Make sure that the rental agreement really applies to your situation.  The MHCO rental agreement comes in two flavors: (a) The month-to-month (or “periodic”) rental agreement, and (b) the lease (or fixed term) agreement.  The difference is that the month-to-month agreement runs for the number of days in the current month.  In the absence of termination by landlord or tenant, the periodic tenancy just “rolls over” month to month.  Regardless of which agreement is used, landlords renting or leasing spaces to residents in mobile home parks may not terminate them without cause.  However, a lease for at least two years carries a distinct advantage in that the park documents, i.e. the lease agreement and the park rules, may be automatically updated at the end of each lease term.  While there are certain limitations on the landlord’s right to impose new park documents on the resident, it is clearly much easier to do under a lease than a monthly rental agreement.[2]  Also, landlords using a fixed terms lease agreement must expressly incorporate any rent increase provisions into the written agreement.  The rent increase statute, ORS 90.600, applies only to periodic (e.g. month-to-month) tenancies and not fixed term tenancies.  If the home located upon the space is a recreational vehicle rather than a manufactured home, landlords should not use the standard mobile home space rental agreement.  The reason is that the mobile home park section of the landlord-tenant law does not apply to recreational vehicles.[3]  When renting space for a recreational vehicle, landlords should use an appropriate MHCO RV rental form.

1. Make sure that the rental agreement is signed by all adult tenants who will occupy the space.  This not only financially obligates them under the agreement, but it makes it easier to enforce violations against rules offenders.  Do not permit occupancy of a home until the rental agreement has been fully signed by everyone.  Trying to get signatures after-the-fact can be difficult, if not impossible.

1. Make sure that the Statement of Policy, Rules, and Rental Agreement are given to the resident and properly receipted for.  Occasionally, residents deny receiving one or more of these documents.  However, the signed receipt by the resident is legal evidence of delivery of these documents.  ORS 90.510(9) provides that a signed receipt is a defense to a claim against the landlord for the failure to deliver these documents.

1. Similarly, landlords should make sure that the rights they summarize in the Statement of Policy accurately reflect their rental agreement and rules.  When using the MHCO forms this is not a problem.  It could be, however, when different forms from different sources are used, and the Statement of Policy provides that the resident has (or does not have) certain rights that are inconsistent with the terms found in the rental agreement or rules. The Statement of Policy is not intended to be a binding legal document - it is supposed to merely summarize the resident’s rights and duties that are found in the rental agreement or rules.

1. Landlords should be sure to fully understand their rights and responsibilities given under their rental agreement form.  Not knowing your rights can result in not enforcing violations, which can lead to a waiver of those rights.[4]

1. One of the more important provisions of the rental agreement form is the one which prohibits assignment, subletting or transfer of possession of the agreement or space without the landlord’s prior written consent.  Landlords should make sure that when a resident vacates, leaving a guest or visitor at the space, immediate action is taken to either terminate the tenancy or require that the occupant promptly apply for tenancy by filling out all required documentation.  Do not accept rent from the occupant, the ex-tenant, or on the occupant’s behalf, until the issue has been thoroughly resolved.

1. Be aware that the fire insurance provision in the MHCO form does not apply unless it is specifically checked:  It requires that the resident must maintain a homeowner's policy of insurance that includes coverage for fire in an amount sufficient to replace the home, and permits the landlord to request a current copy of the policy.

1. Similarly, landlords should be sure to have the resident initial those portions of the rental agreement which require them to do so.  There are several such places found in the sections dealing with (a) sale of the home and (b) the resident’s legal obligations under the tenancy.  When these sections are not properly initialed, there remains an argument that it is not binding.  Although such an argument would not likely carry the day, it can be avoided entirely by simply making sure that when the agreement is signed, all internal provisions are properly completed, checked and initialed where appropriate.

1. The landlord’s rights upon a resident’s resale are very important and need to be fully understood by both parties.  One such section of the resale portion of the rental agreement provides that in the event the resident (or their predecessors) has/have made any improvements or alterations to the interior or exterior of the home which did not conform to all applicable local, state and federal building codes or ordinances in existence at the time the work was performed, the landlord has the right to require, as a condition of consent to the sale, that such improvement or alteration be brought up to all applicable local, state and federal building and construction standards in existence at the time of the sale.  When homes have been substantially remodeled, especially where electrical or plumbing systems are involved, this provision may be useful for the landlord to enforce in order to make sure that the proper building codes are followed.

1. Disputes are an inevitable part of being a landlord.  MHCO believes that assigning fault is less important that securing a workable resolution.  Landlords should be aware that Oregon law requires them to have an informal dispute resolution process in their rental agreement.[5]   The MHCO form provides that in the event of any dispute regarding the interpretation or enforcement of the rental agreement or the rules and regulations, either party shall have the right to have the matter handled through the alternative dispute resolution (“ADR”) process set forth in the attached MHCO Addendum, which is incorporated into the agreement.  If a resident request some form of informal dispute resolution, landlords should promptly respond in doing so.

[1] ORS 90.245 Provides prohibits the following provisions in a rental agreement: (a) Agreement to waive or forgo rights or remedies under the landlord-tenant law; (b) Agreements authorizing any person to confess judgment on a claim arising out of the rental agreement; or (c) Agreements relieving or limiting a landlord’s liability arising as a result of his or her willful misconduct or negligence or agreements requiring the tenant to indemnify the landlord for that liability or any costs connected therewith.  Any provision prohibited in ORS 90.245 is unenforceable. If a landlord deliberately uses a rental agreement containing provisions known by the landlord to be prohibited and attempts to enforce such provisions, the tenant may recover, in addition to the actual damages, an amount up to three months’ rent.

ORS 90.135 provides that “(1)f the court, as a matter of law, finds (a) A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result****”

[2] See, ORS 90.540, 90.545, and 90.610(3) – (8).

[3] See, ORS 90.505 and 90.100(23).

[4] See, ORS 90.415.

[5] ORS 90.610(2).

From a liability standpoint, the contractor should be thoroughly vetted through the Construction Contractor's Board. Make sure that the contractor has no complaints or other Board action. If the home is to be sold on an installment contract, make sure a current form of security agreement is used. Make sure the lien is properly filed with the Department of Consumer and Business Services and appears on the title to the purchaser's home until it is paid off. Make sure the Bill of Sale and, if applicable, the retail installment contract, both have extensive AS-IS language, making no express warranties and disclaiming all implied warranties. Make sure the buyer gets their own inspection of the home, inside and out, including all systems such as plumbing, electrical, HVAC, etc. I don't recommend letting the buyer waive the inspection - it could come back and bite the landlord if an unknown defect is later found. The landlord wants the buyer relying on his own expert, not on anything the landlord says. After the sale the landlord does not want any lingering liabilities.

The landlord may likely have to be licensed as a dealer under ORS 446.003(8). Review ORS 446.616 for the rules concerning transfer of an interest in a manufactured home. Review ORS 446.611 for the rules regarding perfecting a security interest in the home. See ORS 446.641 regarding notification to the county of a transfer of ownership in the home. The landlord should be careful to record his interest first once it is acquired - and make sure title is clear when he first receives it. Otherwise, he may find himself trying to transfer an interest that the public records show belongs to his predecessor and/or has unreleased liens on it.