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Situation: A Michigan landlord rejected an otherwise qualified African-American applicant after an online check revealed that he had been convicted of a felony in connection with a domestic disturbance four years earlier. While acknowledging the conviction, the applicant insisted that he was fully rehabilitated. But the landlord stubbornly refused to budge from the community’s policy of not accepting anyone with a criminal conviction while stressing that it doesn’t “consider cases individually.” The applicant and a local fair housing group sued for racial discrimination. The landlord moved for summary judgment, claiming that the statistics about arrest and incarceration rates of African Americans nationwide were too general to prove disparate impact in a particular community.   

You Make the Call: Did the applicant have a valid claim for racial discrimination under the FHA?

Answer: Yes

Ruling: The Michigan federal court rejected the motion and allowed the applicant to take his claims to trial. “Even countrywide statistics may be sufficient to plead a disparate impact claim where a challenged policy has a clearly disproportional effect on a protected class,” the court reasoned. Besides, the applicant also cited state and county statistics showing the same disproportionate rates of minority arrests and incarceration [Lyman v. Montclair at Partridge Creek, LLC, 2023 U.S. Dist. LEXIS 166464].

Takeaway: As a landlord, you have a responsibility to ensure your community is safe and secure. But while a blanket exclusion based on criminal history might look like a legitimate, nondiscriminatory safety policy, in the view of HUD and many courts, it has a discriminatory impact based on race. By the same token, HUD and DOJ guidelines also say that landlords can reject or evict a person that poses a “direct threat” to the health and safety of other tenants. Rule: Having a criminal record isn’t automatic proof that a person is a direct threat. You must do an individualized assessment of each case based on:

• How long ago the conviction occurred;
• The nature of the crime for which the person was convicted—arrests without a conviction don’t count;
• Evidence of rehabilitation; and
• Other evidence related to whether the person poses a threat to safety.

Answer. I remember writing this provision several years ago, and it has survived the test of time - in other words - to my knowledge it has never been set aside or otherwise ruled illegal or unconscionable by any Oregon courts.

The genesis of this provision relates to the change in Oregon law several years ago that prohibited landlords from imposing a "removal on resale" condition when consenting to the sale of older homes in their communities. Essentially, the condition said that if when the resident sought to sell the home to a new buyer, the landlord could consent, but could add the condition that the home had to be removed on resale. In theory, this was designed to permit landlords to incrementally upgrade the age of the homes in their communities.[1]

The law, prohibiting this practice, is found in ORS 90.680(12) which provides that:

A landlord may not, because of the age, size, style or original construction material of the dwelling or home or because the dwelling or home was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code as defined in ORS 455.010:

(a) Reject an application for tenancy from a prospective purchaser of an existing dwelling or home on a rented space within a facility; or

(b) Require a prospective purchaser of an existing dwelling or home on a rented space within a facility to remove the dwelling or home from the rented space.

The quid pro quo for landlords permitting this legislation was twofold:

• A law that expressly allowed landlords to impose maintenance requirements to the exterior of homes (ORS 90.632);
• A law providing that the failure to enforce the maintenance provision did not constitute a waiver of the right to do so in the future. See, ORS 90.414(1)(c).[2]

While these laws worked well for the exterior of older homes, they did not address the interior, where typically, landlords could impose no updating requirements. However, ORS 90.740 (Tenant Obligations), provided for several things I believed we could incorporate into the MHCO Rental and Lease Agreements. Among other things, the statute provides that residents must:

• Keep the dwelling or home, and the rented space, safe from the hazards of fire;
• Install and maintain in the dwelling or home a smoke alarm approved under applicable law;
• Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;
• Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

And since ORS 90.630(1)(a) provides that '_the landlord may terminate a rental agreement *** if the tenant: (a) Violates a law or ordinance related to the tenant's conduct as a tenant... " I felt it was not unreasonable to require that if the resident made any modifications to the home or its heating, cooling or electrical systems, they must comply with all local, state and federal codes and regulations in existence at the time of the modification."

I then consulted with one or more professional inspectors who specialize in manufactured homes, to ask if they could inspect the interior of the home and vet these issues. I was assured they could.

Lest your resident argue that neither they, nor their buyer, wants to pay for this, I would respond that this requirement is not just for their safety, but the rest of the Park's residents. If the home should catch fire, the conflagration could endanger others as well as them.

Lastly, it is my position, which I have vetted with others, that notwithstanding the ORS 90.680(12) proscription against imposing a "removal on resale" condition, it does not apply if the resident has made changes '_to the original construction material of the dwelling or home *** [that] was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code... ."

In other words, it is my belief[3] that if a resident has made changes to the heating, cooling, or electrical systems inside their home, he or she is no longer protected against the prohibition against "removal on resale" condition. So your recalcitrant resident has two choices: (a) Either consent to the interior inspection by a professional, to make sure it is "safe from the hazards of fire" or (b) You can impose a "removal on resale" requirement. And by the way, since you can impose, as a condition of approval, that the new resident has fire and liability insurance, you will want to consider imposing both conditions, and becoming a co-insured on the liability policy. Good Luck!

[1] Tenant lawyers argued that the provision was illegal, since it violated the law prohibiting termination of MHP tenancies without cause. It was the result of this standoff that resulted in the compromise legislation.

[2] When these laws were being negotiated, non-waiver was important to several landlords who had fixed income elderly residents whose homes were in need of exterior maintenance or painting. While they were willing to forego enforcing the maintenance requirements so long as the aged resident was living there, they did not want to waive the right to do so later, if the home was sold, or transferred by inheritance.

[3] You should verify this with your own legal counsel. MHCO's Q&A articles should not be relied upon as "legal advice".

[Corrected Update: The third paragraph below the Question has been revised to clarify that SB 282 extended the Grace Period for tenants to cover the entireMoratorium period, April 1, 2020 to June 30, 2021. Thanks to John VanLandingham for bringing this to our attention.]

Question: We have several tenants that have vacated owing us money. They did not have a declaration on file with us. Can we start to collect on this money owed? What are our next steps?

Answer: The Oregon Eviction Moratorium laws have been largely silent on the fate of the non-payment balance of former tenants. Here’s what we do know:

There is a short window, between March 31, 2021 and June 30, 2021 where a landlord may file an action to recover a Nonpayment Balance (all outstanding rents, charges and fees accrued between April 1, 2020 to December 31, 2020), but only from a tenant who has notfiled a Declaration of Financial Hardship. 

This window is closed on July 1, 2021, when relevant portions of a new bill, SB 282, come into effect. SB 282 extended the Grace Period to cover the entireMoratorium period, April 1, 2020 to June 30, 2021. Accordingly, commencing on July 1, 2021, a landlord must wait until after February 28, 2022 to recover any outstanding Nonpayment Balance accruing during the Moratorium, regardless of whether the tenant has submitted a Declaration of Financial Hardship.

While filing to collect a Nonpayment Balance is technically possible in the short window between March 31 and June 30, 2021 under the current moratorium rules, there is no way of knowing how the courts will interpret this right, or if it is being allowed at this time. Problem: The Moratorium bills do not specify whether these protections apply only to current tenants or to current andformer tenants. Without delving into the legislative history, or getting a legal opinion from your own counsel, the safest approach might be to interpret this prohibition as applying to both current and former tenants.

The most recent bill, SB 282, signed in mid-May 2021, prohibits landlords from reporting outstanding rents, charges, and fees accruing between April 1, 2020 to June 30, 2021 to any consumer credit agency.

All of the Eviction Moratorium bills, dating back to early 2020 (HB 4213, HB 4401, and SB 282) are largely silent on the application of these new regulations to tenants who have moved out during the pandemic. The only portion of the law directly addressing former tenants says that if a tenancy terminates before the end of the new Grace Period (i.e., before February 28, 2022), a landlord “may claim from the security deposit or last month’s rent deposit to repay the unpaid rent balance that accrued [between April 1, 2020 and June 30, 2021].” 

Though there is no indication whether the laws implicate the relationship between landlords and former tenants, prior guidance issued by the Oregon Law Center in a January 2021 webinar addressing HB 4401 indicates that the laws likely do impact former tenants. Much of the relevant language between HB 4401 and SB 282 remains the same, so it’s reasonable to assume that the interpretation of one will suffice for the other unless and until further guidance is issued. 

Oregon Law Center HB 4401 Eviction Moratorium FAQ

“Q: Does the prohibition on reporting "non-payment balance to any consumer credit agency" include stopping landlords from sending past residents to collections?

“A: If the debt is for rent owed during the moratorium period [now April 1, 2020 through June 30, 2021], and is either debt from before December, or the tenant has submitted a Hardship Declaration, then the landlord may not make a report to the credit bureau and may not pursue collections while the tenant is covered by the moratorium. After the tenant has moved out, the law is less clear. There is an argument that these protections continue until the end of the moratorium period, regardless of whether the tenant has moved out.”[emphasis added]

“Q: What if a client has vacated a unit with a remaining balance of rent still due, can they submit the declaration of hardship to prevent those charges from being submitted to collections?[. . .]

“A: If a tenant vacates a unit with a remaining balance of rent still due, the landlord can use the deposit to pay for past-due rent. If there is still remaining past due rent owed, and the tenant had submitted a declaration form to the landlord before moving out, it is unclear whether the landlord can pursue collections and make a credit bureau report right away,(SB 282 has made reporting nonpayment debt to a credit bureau unlawful) or has to wait until the end of the moratorium period(June 30, 2021).”[1][emphasis added.]

What’s Next:

Landlords will be able to begin collecting the current month’s rents, charges, and fees, on time and with appropriate remedies (imposition of late fees or termination) on and after July 1, 2021. For any outstanding Nonpayment Balance for current or former tenants, landlords may:

 1) Apply to the Landlord Compensation Fund for partial compensation for their losses   (Note: Must have a signed Declaration of Financial Hardship from tenant, current or        former);

2) Contact the tenant and try to work out a voluntary repayment plan for nonpayment     debt; 

3) Wait until after February 28, 2022 to pursue legal action to collect the debt. 

Since Oregon has been operating under some form of Covid-related eviction and collections moratoria since the Spring of 2020, there has been no official guidance on how to collect a Nonpayment Balance from anyone. It simply hasn’t been an option for the last year. Tenants will be required to pay current rents beginning in July of 2021, and collections for debts incurred after that date will be as normal. How the process of collecting outstandingNonpayment Balances will proceed is unclear at this time.

It is worth noting that the eviction moratoria laws permit landlords to accept partial payments from tenants, or on behalf of tenants, without waiving their rights to later seek the balance of the debt or pursuing any other available options once the latest moratorium expires. 

Also, the Landlord Compensation Fund will have a third round of funding and, unlike the prior two rounds, landlords may apply for compensation for former tenants provided they (a) have a signed Hardship Declaration and (b) a current address on file. If a tenant has passed away with an outstanding debt, the landlord should contact the Landlord Compensation Fund for further guidance.

An initial question a community owner might have is, "How about my pre-existing community, does it need to comply with ADA issues?" Answer: "It depends." If your community pre-dates the ADA statute, and the community has not gone through any significant renovations (determined on a case-by-case basis), then the community may be "grandfathered in" in most cases. However, there can still be considerations of "reasonable accommodation" and "readily achievable barrier removal" under the ADA that could require a community owner to make modifications to existing structures and to make existing buildings "accessible" to the disabled. There may be no "grandfathering in" under these provisions of the ADA. In addition, if the community has undergone substantial alterations/renovations, this could also trigger ADA compliance.

The next question is whether a manufactured home community is a "place of public accommodation." The ADA defines a "public accommodation" to be "a private entity that owns, leases (or leases to), or operates a place of public accommodation." Examples of places of "public accommodation" include: places of lodging; establishments serving food or drink; places of exhibition or entertainment; places of public gathering; sales or rental establishments; service establishments; stations used for public transportation; places of public display or collection; places of public recreation; places of public education; social service center establishments; and places of exercise or recreation.

Does a manufactured home community fit under these descriptions? Based on discussions with ADA experts, the typical community does not appear to "fit" under any of the enumerated examples of a "public accommodation," assuming the community's facilities are only open for the sole use and enjoyment of the community's residents, rather than the "general public." In some cases, however, a community's clubhouse and office could be determined to be "public accommodations" as they are generally "opened to the public." In addition, the community's office is necessarily "opened to the public" as persons, not otherwise residents of the community, are allowed in and, in fact, are invited in to inquire about available spaces and/or homes in the community.

If the community has "public accommodations" which have "barriers" to "handicap access," then the next consideration is whether the "removal of the barrier" is "readily achievable." The ADA generally defines "readily achievable" as easily accomplished and able to be carried out without much difficulty or expense. 42 U.S.C.S. _ 12181(9). Federal courts have developed several factors in determining what is "readily achievable": (1) nature and cost of the removal; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and resources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including composition, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. Colorado Cross Disability Coalition v. Hermanson Family Ltd. Pshp. The community however will bear the ultimate burden to prove that the barrier removal is not readily achievable. This will be determined on a case-by-case basis for each individual community.

So, how do you lessen the chance of your Community becoming a "target" of an ADA lawsuit? There are no "bright lines" as to whether a community has ADA issues or not. Since an "ounce of prevention is worth a pound of cure," the prudent community owner might be best served by hiring a knowledgeable ADA Consultant to review and comment on whether the community has any ADA issues and how they should or could be addressed. Another, and more conservative approach would be to simply make sure that all of the community facilities are "ADA compliant," even if, technically and legally, you may not be required to do so. Little things can make a big difference in your community. Examples of ADA compliance include: levers on the entrance doors; levers on bathroom doors and fixtures; bathroom fixtures at proper height; proper bathroom accessories; doorways that accept wheelchair access; bathrooms that accept wheelchair access; counters at correct height for wheelchairs users; alternatives (ramps/elevators) to steps into the clubhouse and office; acceptable transitions (no lips) at doorways (interior and exterior); handicap community and van access; acceptable transitions (commonly referred to as "curb cuts") to sidewalks at street junctions and handicap community; and acceptable inclines from community areas to public accommodations, to name a few.

Your ADA consultant can walk your community and let you know what facilities do and do not comply with ADA. Making the necessary improvements will be money well spent, and potentially "ward off" expensive litigation, which litigation, in all probability, will not be covered by your general liability insurance policy. You might also want to turn this into a "PR plus" for your community - i.e., tell your residents about the improvements after they are done! However, such actions may not be right for every community. The community owner should first discuss ADA considerations with its legal counsel to determine what the right course of action under the particular circumstances.

Rob Coldren is a founding partner of the MHI-member law firm of Hart, King & Coldren in Santa Ana, Calif. For over three decades, Mr. Coldren's practice has emphasized representation of mobilehome parks, recreational vehicle parks, as well as park owners and managers. He can be reached at rcoldren@hkclaw.com. John Pentecost is a partner with the firm and specializes in property rights and the law as it pertains to the manufactured housing industry. He may be reached at jpentecost@hkclaw.com. Both can be reached by phone at (714) 432-8700.

By:  Phil Querin, MHCO Legal Counsel

Always Assume The Matter Will Go To Court

While most legal notices will have their desired effect – e.g. the tenant will pay the rent, or maintain the space, or do what is necessary to comply – there are a small number of tenants who will fight. Of those who fight, some will secure an attorney. Most attorneys know that the easiest way to win is to attack the notice for some deficiency. If the notice is legally insufficient, the landlord’s case will fail without any examination of the merits of the case. The failure to win in court oftentimes leaves management with an unmanageable tenant.

Accordingly, when landlords and managers prepare notices, they should alwaysassume that the notice will be contested. This approach is the best protection landlords have in securing compliance in those cases where the tenant decides to fight. 

What does it mean to draft a notice as if the matter will go to court? It means that someone – the judge or jury - will be scrutinizing the document. It means making sure that everything is filled out correctly before mailing or delivering it. It means using a form, if one is available, rather than hand-drafting a notice. It means making sure that the proper form is used. In some circumstances, it may mean having your attorney review the form beforesending it out.

Always Use A Calendar

Virtually all legal notices in the landlord-tenant law give a certain number of days (or hours) for compliance. If a 30-day notice is mailed, three additional days must be added. This means that the deadline for compliance is at least 33 days. However, landlords and managers frequently count the day of mailing toward the 33 days. This is incorrect. Additionally, the 33d day is frequently identified as the deadline, when it should be the day afterthe 33d day. When notices are sent in the month of February, the 33-day calculation can get confusing, since there are only 28 days – or 29 in the case of leap years. Rather than trying to do it in your head, it is far better to physically count the number of days on a calendar. Don’t do it once. Count out the necessary number of days at least three times, just to make sure that you’ve gotten it right.

Don’t Cut Deadlines Too Close

Frequently, landlords and managers give only the minimal number of days for compliance. This can be dangerous. While the court will always throw out a notice that is too short, it cannot throw one out that is too long. Since the risk of error is so high in the calculation of the necessary number of days, it is always prudent to give a couple of extra days, just to be safe. Rather than giving just 33 days on mailed 30-day notices, give 35. The statute governing the calculation of days can be confusing. Rather than trying to remember each rule, it is far better to simply add a couple of extra days, in order to avoid the risk of miscalculation.

Avoid All Ambiguity

For all maintenance and repair notices, be as specific as possible. Assume that a judge or jury will be looking at it. Assume that they know nothing about the problem. Will they be able to understand it? For example, saying “Clean up your yard” will not be understood by a judge or jury to mean “Mow and edge the lawn, and remove the weeds and blackberry bushes.” While tenants may know, in their heart of hearts, exactly what the landlord is referring to when he says “Clean up your yard,” by the time the matter gets into court, the tenant’s attorney will argue that the notice was so vague as to make compliance impossible. 

On disrepair notices, landlords and managers should be sure to tell the tenant exactly what is wrong with the home and exactly what is necessary to remedy it. To say “fix the steps” will be argued as too vague. This cannot be said of a notice that says “repair or replace the broken steps and handrail located along the side of the sundeck behind the house.” 

Use Current MHCO Forms

Most forms have a copyright date at the bottom. Remember that the Oregon Legislature meets every two years and that a session never goes by without some changes being made to the landlord-tenant laws. There is a good chance that a 1996 form will not legally comply with those laws generated during the 2001 Legislative Session. Accordingly, if you have a form that is copyright dated before the latest legislative year, you should check to find out if it is still current. 

Make Sure You’re Using the Right Form

While this seems obvious, errors can occur. This is especially true when sending out notices to repair a home due to damage or deterioration. ORS 90.632 expressly governs this situation. There is a special form that must be used. The law requires that the form must contain specific notice to the tenant regarding their rights to obtain an extension of time for compliance if certain repairs, such as painting, are required by the landlord. Landlords and managers frequently confuse damage and deterioration situations with failure to maintain issues. If a house is in need of paint or the skirting is rusted and broken, a notice under ORS 90.632 must be issued, since this deals with damage or deterioration. However, this is not so, if the problem is simply maintenance, such as debris in the yard, or the home needs to be power-washed.

Be Careful Using 24-Hour Notices

While there are several good reasons to use a 24-hour notice, before issuing one, you should first ask two questions: (a) Is the conduct expressly prohibited by the park rules, and (b) is it of such a magnitude that it jeopardizes the health and safety of the tenants or managers in the park. If the violation is a breach of the rules, but is nota health or safety issue, it is better to give a 30-day notice for a rules violation. Here’s why: 24-hour notices are not curable. This means that the court will be faced with having to kick someone out of their home. If there is any doubt whatsoever, the judge or jury will normally come down on the side of the tenant. However, a 30-day notice is curable. If the conduct stops, there is no further issue for the landlord. If it is repeated within six months of the date of the 30-day notice, the landlord may issue a 20-day non-curable notice. If the landlord must file an eviction based upon the tenant’s failure to vacate after the issuance of a 20-day notice, the judge or jury will know that the tenant was first given an opportunity to avoid termination of the tenancy but they ignored it. 

Only Use Notices of Termination As A Last Resort

Several changes ushered in by the 2001 Legislative Session make it easier for landlords and managers to first seek voluntary compliance from a tenant before issuing notices of termination. The waiver statute is not as harsh as it once was. Additionally, since informal notices are not intended to be the basis of an eviction action, they do not need to be in any particular form. They can be mailed or hand delivered without the necessity of counting days. They do not have to threaten termination of the tenancy. They do not need to have a fixed deadline for compliance. They can say “please.” Perhaps most important, they make management look better, since they show that the landlord or manager “walked the extra mile” with the tenant, rather than simply terminating the tenancy. Most landlord attorneys would prefer to be in court with a tenant’s file that is thick with requests for voluntary compliance. By the time a legal notice of termination is sent, it should say to the judge or jury “this was the landlord’s last resort.”

Only Use Notices Of Termination If You Mean It

Landlords and managers who issue notices without enforcing them create the appearance they are “crying wolf.” If a notice is issued, say for failure to maintain the yard, but no enforcement occurs upon noncompliance, the notice loses importance. If this occurs park-wide, the minute an eviction is filed based upon a particular tenant’s refusal to comply, the argument occurs that management is engaging in “selective enforcement,” since it had never done it before.  Consistent with the “last resort” approach, discussed above, landlords and managers should reserve the legal notice of termination only for those cases in which they intend to follow through.

Conclusion

While legal notices of termination are a necessary precondition to filing an eviction, they can also prove to be management’s undoing, if not properly used. They should be reserved for those cases in which the landlord or manager has no other viable alternative, and when used, they mustbe properly prepared.  Indiscriminate use or sloppy preparation of notices of termination will do management more harm than good.

Always Use A Calendar

Virtually all legal notices in the landlord-tenant law give a certain number of days (or hours) for compliance. If a 30-day notice is mailed, three additional days must be added. This means that the deadline for compliance is at least 33 days. However, landlords and managers frequently count the day of mailing toward the 33 days. This is incorrect. Additionally, the 33d day is frequently identified as the deadline, when it should be the day after the 33d day. When notices are sent in the month of February, the 33-day calculation can get confusing, since there are only 28 days – or 29 in the case of leap years. Rather than trying to do it in your head, it is far better to physically count the number of days on a calendar. Don’t do it once. Count out the necessary number of days at least three times, just to make sure that you’ve gotten it right.

Don’t Cut Deadlines Too Close

Frequently, landlords and managers give only the minimal number of days for compliance. This can be dangerous. While the court will always throw out a notice that is too short, it cannot throw one out that is too long. Since the risk of error is so high in the calculation of the necessary number of days, it is always prudent to give a couple of extra days, just to be safe. Rather than giving just 33 days on mailed 30-day notices, give 35. The statute governing the calculation of days can be confusing. Rather than trying to remember each rule, it is far better to simply add a couple of extra days, in order to avoid the risk of miscalculation.

Avoid All Ambiguity

For all maintenance and repair notices, be as specific as possible. Assume that a judge or jury will be looking at it. Assume that they know nothing about the problem. Will they be able to understand it? For example, saying “Clean up your yard” will not be understood by a judge or jury to mean “Mow and edge the lawn, and remove the weeds and blackberry bushes.” While tenants may know, in their heart of hearts, exactly what the landlord is referring to when he says “Clean up your yard,” by the time the matter gets into court, the tenant’s attorney will argue that the notice was so vague as to make compliance impossible.

On disrepair notices, landlords and managers should be sure to tell the tenant exactly what is wrong with the home and exactly what is necessary to remedy it. To say “fix the steps” will be argued as too vague. This cannot be said of a notice that says “repair or replace the broken steps and handrail located along the side of the sundeck behind the house.”

Use Current MHCO Forms

Most forms have a copyright date at the bottom. Remember that the Oregon Legislature meets every two years and that a session never goes by without some changes being made to the landlord-tenant laws. There is a good chance that a 1996 form will not legally comply with those laws generated during the 2001 Legislative Session. Accordingly, if you have a form that is copyright dated before the latest legislative year, you should check to find out if it is still current.

Make Sure You’re Using the Right Form

While this seems obvious, errors can occur. This is especially true when sending out notices to repair a home due to damage or deterioration. ORS 90.632 expressly governs this situation. There is a special form that must be used. The law requires that the form must contain specific notice to the tenant regarding their rights to obtain an extension of time for compliance if certain repairs, such as painting, are required by the landlord. Landlords and managers frequently confuse damage and deterioration situations with failure to maintain issues. If a house is in need of paint or the skirting is rusted and broken, a notice under ORS 90.632 must be issued, since this deals with damage or deterioration. However, this is not so, if the problem is simply maintenance, such as debris in the yard, or the home needs to be power-washed.

Be Careful Using 24-Hour Notices

While there are several good reasons to use a 24-hour notice, before issuing one, you should first ask two questions: (a) Is the conduct expressly prohibited by the park rules, and (b) is it of such a magnitude that it jeopardizes the health and safety of the tenants or managers in the park. If the violation is a breach of the rules, but is not a health or safety issue, it is better to give a 30-day notice for a rules violation. Here’s why: 24-hour notices are not curable. This means that the court will be faced with having to kick someone out of their home. If there is any doubt whatsoever, the judge or jury will normally come down on the side of the tenant. However, a 30-day notice is curable. If the conduct stops, there is no further issue for the landlord. If it is repeated within six months of the date of the 30-day notice, the landlord may issue a 20-day non-curable notice. If the landlord must file an eviction based upon the tenant’s failure to vacate after the issuance of a 20-day notice, the judge or jury will know that the tenant was first given an opportunity to avoid termination of the tenancy but they ignored it.

Only Use Notices of Termination As A Last Resort

Several changes ushered in by the 2001 Legislative Session make it easier for landlords and managers to first seek voluntary compliance from a tenant before issuing notices of termination. The waiver statute is not as harsh as it once was. Additionally, since informal notices are not intended to be the basis of an eviction action, they do not need to be in any particular form. They can be mailed or hand delivered without the necessity of counting days. They do not have to threaten termination of the tenancy. They do not need to have a fixed deadline for compliance. They can say “please.” Perhaps most important, they make management look better, since they show that the landlord or manager “walked the extra mile” with the tenant, rather than simply terminating the tenancy. Most landlord attorneys would prefer to be in court with a tenant’s file that is thick with requests for voluntary compliance. By the time a legal notice of termination is sent, it should say to the judge or jury “this was the landlord’s last resort.”

Only Use Notices Of Termination If You Mean It

Landlords and managers who issue notices without enforcing them create the appearance they are “crying wolf.” If a notice is issued, say for failure to maintain the yard, but no enforcement occurs upon noncompliance, the notice loses importance. If this occurs park-wide, the minute an eviction is filed based upon a particular tenant’s refusal to comply, the argument occurs that management is engaging in “selective enforcement,” since it had never done it before.  Consistent with the “last resort” approach, discussed above, landlords and managers should reserve the legal notice of termination only for those cases in which they intend to follow through.

Conclusion

While legal notices of termination are a necessary precondition to filing an eviction, they can also prove to be management’s undoing, if not properly used. They should be reserved for those cases in which the landlord or manager has no other viable alternative, and when used, they must be properly prepared.  Indiscriminate use or sloppy preparation of notices of termination will do management more harm than good.

Just make sure that the rules don’t unfairly target families with children—or anyone else protected under fair housing law. You may have legitimate concerns about outdoor play activities that could disturb neighbors or damage your property, but avoid rules that specifically target children’s behavior. Rules banning children from playing in common areas—or placing unreasonable limits on what they can do outside—could lead to accusations that you are treating families with children less favorably than adult households living at the community.

Example: In January 2015, a court approved a $20,000 settlement in a fair housing case against a California community filed by a mother on behalf of her two young children. The complaint alleged that the children, ages 7 and 5, were repeatedly warned against riding their scooters in the common area of the complex. Allegedly, an employee said they couldn’t ride scooters, bikes, or skateboards and threatened to evict her if he caught them again. When he saw them the next day, the employee allegedly used his cell phone to record them and yelled at them. Some weeks later, the mother said the children were were riding their scooters when the manager ran up and screamed at her son, and then handed her a formal warning.

After receiving another warning, the mother sued the community for discrimination. The parties settled the case by signing a confidential agreement, which called for the court to approve $10,000 payments to each child to be held until they reached adulthood. The court ruled that the settlements were reasonable given the alleged wrongs and injuries described and were consistent with the range of settlements in similar cases [Milton v. Regency Park Apartments, January 2015].

Even if you adopt rules that govern all residents—not just children—you could still face a discrimination claim if you enforce the rule only against children. Singling out children for breaking the rules against noisy behavior in common areas while ignoring similar transgressions by adults could lead to a fair housing claim based on familial status.

Answer: First things first. If you simply want to get rid of Kris, you can immediately serve him with a no-cause eviction notice. Since it seems like he has been there far longer than a year, Oregon law requires a 60-day notice to evict. MHCO form 43 C is the form for you.

The "reasonable accommodation" request does raise a potential retaliation defense, however, so don't be too quick to ruin the holidays with an eviction notice. It would probably be best to give Kris a reasonable accommodation request form (MHCO Form 15). That form requires Kris to give the park information about his disability and get a medical provider or other specialist to sign off on the fact that he actually needs an accommodation. Assuming Kris returns the completed form, go ahead and do background checks on his guests (conduct and criminal check only, not credit history). If everything checks out, have his guests sign a temporary occupancy agreement (MHCO Form 25).

The reindeers are definitely a problem. If you're okay with them being there, have Kris fill out a pet agreement (MHCO Form 21). If you want the beasts out, you can give a 10-day pet notice forcing Kris to remove Rudolph and Co. if the herd is capable of causing damage to persons or property. (MHCO doesn'thave this particular form, so contact attorney Lionel Hutz at "I can't Believe It's a Law Firm!" in Springfield.)

The parking is easy to remedy if you have clearly posted signs stating that street parking is not allowed and unlawfully parked vehicles are subject to tow. You should also have local towing company signs posted. If you fit these requirements, call the tow company and they will put that eyesore in the impound lot.

The wild card here is if Kris happens to break into your park office and leaves a lump of coal in your stocking. If you can prove it was him, you could likely issue a 24-hour eviction notice for either substantial damage to the premises if he breaks the chimney, or perhaps for outrageous behavior for forcing his way into the building. And, if Kris instead happens to leave you presents that cause your heart to grow 3 sizes, you can probably get him with a 24-hour notice for inflicting substantial personal injury.

Happy Holidays to All!

Last week MHCO met with representatives of the Oregon county tax assessors and successfully negotiated the elimination of abandoned home back taxes.

For those you who have been following this issue - earlier this year MHCO set out to make significant changes to ORS 90.675 that requires community owners to pay the back taxes owed on an abandoned home if they want to purchase the home and keep it in their community.  After a lengthy series of meetings with MHCO, the counties agreed to cancel unpaid back taxes on abandoned manufactured homes.

There remain technical issues, but the main hurdle - eliminating the tax obligation - has been resolved.  Here are the details of the agreement -

• No cap on the amount of back taxes to be cancelled.

• The landlord will need to file an affidavit/form (MHCO will work with the county tax assessors on the form which ultimately will be posted on MHCO.ORG). 

• The affidavit/form will state:

• That the landlord has sold or will sell the MH to an unrelated buyer;
• The buyer will live in the MH in the park;
• The sale is an arms-length transaction;
• The amount of the sale price, along with the total of the landlord's claims or costs against the manufactured home, limited to unpaid back rent, sale costs (per ORS 90.675 (13) (a) consists of the reasonable or actual cost of notice, storage for a reasonable period, and sale; presumably this includes attorney fees, but only to do these tasks), and any improvements done by the landlord to the manufactured home as part of the sale.
• The landlord may deduct from any sale proceeds the cost of storage (typically space rent) only for a reasonable period, as necessary to complete the abandonment process, to make any repairs necessary to make the manufactured home saleable, and to sell it.
• The landlord will pay any county warrant fees required for the cancellation
• The landlord will pay any amount from the sale in excess of the landlord's costs (unpaid rent, sale costs, improvement, etc.) to the county for unpaid taxes.  The landlord will be allowed to keep any excess over the unpaid back tax amount.

Later this month there will be further discussions on the details regarding the affidavit and other potential legislative issues.  As with all previous landlord-tenant coalition bills the participants in the negotiations reserve the right not to make a final commitment until the final draft is on the table.  Depending on what is or is not in that final agreement will determine MHCO's final position.  A lot can happen between now and the final draft of a bill - but today we are very happy that we have made significant progress in changing a very onerous statute that impacts every community owner who ends up wanting to buy an abandoned home in their community.

Thanks to everyone from MHCO who worked on these negotiations.  We will keep you posted on legislative developments as move in to the post election/pre legislative world.  Stay tuned!

Answer:  To clarify, when you refer to the “Moratorium” you are referring to HB 4401 which was signed by the Governor on December 23, 2020. It did two things: 

• Directed the Oregon Housing and Community Services Department to implement a program for direct aid to landlords reimbursing a percentage of outstanding rents; and 
• Modified the Emergency Period and Grace Period created under HB 4213 for tenants who claim financial hardship. 

Your question about the Hardship Declaration refers to what happens if the tenant delivers it to the landlord:  Afteratenantdeliversacopyofthe Hardship Declarationto the Landlord,theEmergencyPeriod andendoftheGracePeriodcreated in earlier legislation areextendedto June 30,2021. The Hardship Declaration can be filed by the tenant as late as the first appearance date after you file for eviction. After the filing, the landlordmaynot takeorattempttotakeanyactiontointerferewithatenant’spossession, subject to the following exceptions:

• Evictions for violation of a rental agreement, other than non-payment may continue;
• Evictions for nonpayment occurring before April 1, 2020 may also continue (Emphasis added);
•  “Landlord-cause” evictions[1]are allowed after the first year of occupancy. Landlord-cause evictions include:

• Demolition or converting dwelling unit to non-residential use;
• Intent to make repairs/renovations to the dwelling unit within a reasonable time, and the building is unsafe/unfit or occupancy or will be unsafe/unfit for occupancy during the repair/renovation period; 
• Landlord intends for immediate family member to occupy dwelling unit as a primary residence and no comparable units at the same location are available; or 
• Landlord has accepted an offer to purchase the dwelling unit; purchaser will use unit as a primary residence.[2]

Since the rents due to you under the Stipulated Judgment arose before April 1, 2020, I interpret your question to asked whether you can pursue them by filing an Affidavit of Noncompliance under ORS 105.146.  

Normally, I might give you a cautious green light. But in this environment, I must recommend against it. First, the court could ignore the above exception under HB 4401. Secondly, and more importantly, the Center for Disease Control and Prevention (“CDC”) has issued a blanket moratorium on nonpayment of rent evictions which arguably supersedes the exception under HB 4401. It was updated today. See details, here.

Bottom line, I would not attempt to enforce what we all agree was a legitimate stipulated judgment at the time. HB 4401 is supposed to end June 30, 2021. But until the CDC moratorium ends, I would follow it, regardless of Oregon law. 

And even though I do not believe the original CDC moratorium was intended to apply to rents due before September 2020, my brief reading of the federal law, including the update, suggests that if the eviction has not been completed– and yours has not because of the stipulated judgment – the filing of the Affidavit of Noncompliance could be interpreted as an attempt to evict in violation of the current CDC moratorium.