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History

The Civil Rights Act of 1968 enacted The Fair Housing Act ("FHA") to prohibit housing discrimination based on race, color, religion, sex, or national origin. The FHA was amended in 1988 to expand its coverage to prohibit discrimination based on disability or family status, meaning the presence of a child under the age of 18 and pregnant women. Because the creation of families as a protected class clashed with the operation of retirement or adult communities, the 1988 amendments included exemptions for housing developments that qualified as housing for persons over the age of 55. Because there was an inherent conflict between protected family status and the exemption for older persons, Congress responded with The Housing For Older Persons Act of 1995 ("HOPA") which fine tuned the exemptions and is now the definitive authority for owners of such housing. (You should also be aware that municipalities can have ordinances prohibiting discrimination for categories broader than the Civil Rights Act. Examples of common ordinances gaining popularity are discrimination in housing on the basis of HIV/AIDS status, sexual orientation. Such ordinances are not addressed in this article.)

Occupancy Requirement to Qualify for Exemption

HOPA maintained the requirement that at least 80% of exempt housing must have one occupant who is 55 years of age or older. It also still required that the exempt hosing publish and follow policies and procedures that demonstrate an intent to be housing for persons 55 and older. Significant in terms of capital costs, HOPA eliminated the requirement that 55 and older hosing had to maintain "significant facilities and services" designed for the elderly. (Communities that are occupied solely by persons who are 62 and older are also exempt from the prohibition against family discrimination under Section 100.303.)

"Wiggle Room" Factor

At first blush, the 80% requirement appears to give a property owner some "wiggle room" to comply with the exemption. HOPA specifically allows a 55 and older community to be "exempt" from the preference for families if, after September 13, 1988, 80% of the units are occupied by at least one person age 55 years or older. Units occupied by employees of the housing facility or community who are under the age 55 do not count against the 80% as long as the employees perform substantial duties related to the management or maintenance of the community. Likewise, units occupied by persons who are disabled and require a reasonable accommodation, also do not count against the 80%.

However, the 80% requirement can also be a property owners' pitfall if it is achieved improperly. The 80% requirement does not mean that the property owner can manipulate the remaining 20% of units occupied by persons under the age of 55. The 80% occupancy requirement is coupled with an additional requirement that the facility or community adheres to policies and procedures that demonstrate the intent to be a 55 or older facility. A manager cannot merely choose to rent to "good" non-seniors or families just because the facility is over 80% senior.

One provision of HOPA which, on the surface, appears troublesome is Section 100.305(h) which provides that each housing facility may determine the age restriction for units that are not occupied by at least one person 55 years of age or older. On its face, this provision appears to allow a community to set any age requirement it wishes for the twenty percent (20%) of spaces which are not required to be occupied by a person 55 years of age or older, including requiring the occupants of the remaining twenty percent (20%) of spaces to be adults. However, this would appear to be contrary to the general intent of the FHA to prohibit discrimination on the basis of "family status". A more likely interpretation is that the housing provider need not apply any age restriction on occupancy of the remaining twenty percent (20%) of rental units. This interpretation seems likely, not only in view of the general intent of the FHA, but in view of Section 100.306(d) which provides that a housing facility or community may allow occupancy by families with children as long as it meets the intent requirements of Sections 100.305 and 100.306(a).

An argument could well be made that a community must allow up to twenty percent (20%) of the spaces to be occupied by persons who do not otherwise satisfy the community's minimum age requirements. The problem is that a park which "uses up" its twenty percent (20%) allotment may find itself below the 80% requirement if a space which was previously occupied by a person 55 years of age or older ceases to be so occupied. This could occur as a result of an older tenant dying or moving out of the community.

It has been our experience that HUD has, from time to time, interpreted the "twenty percent" allowance as a "fudge factor" in order to avoid hardship where, for example, an older tenant dies, leaving a widow who does not satisfy the community's minimum age requirements. This interpretation was bolstered by the requirement that the housing be intended for persons 55 years of age or older and that the properties have rules that limit residency to persons meeting the age requirements. Deliberately allowing persons under the age of 55 to move into the community seems contrary to this intention.

**Tip: In many states the law requires that mobile home parks owners uniformly enforce all published rules. To allow some households to avoid the requirement could run afoul of such laws leaving the door open for a disgruntled tenant to sue on a claim that the management is not uniformly enforcing its own rules.

Published Procedures & Policies of Intent

In addition to requiring that at least 80% of the occupied units be occupied by at least one person who is 55 years of age or older, HOPA requires that the housing be "intended and operated" for person 55 years of age or older, and that the housing facility "publish and adhere to policies and procedures that demonstrate its intent" to qualify for the 55 or older exemption. Section 100.306(a) sets forth a non-exclusive list or relevant factors in determining whether the park "demonstrates" this "intent":

(1) The manner in which the housing facility is described to prospective residents;
(2) And advertising designed to attract prospective residents;
(3) Lease provisions;
(4) Written rules and regulations;
(5) The maintenance and consistent application or relevant procedures;
(6) Actual practices; and
(7) Public posting in common areas of statements describing the facility as housing for persons 55 years of age or older;

These requirements bolster the "common sense" approach to a community demonstrating its intent to be housing for older persons. Specifically, without limitation, the parks' residency documents need to clearly state the age restrictions on residency, and the age restrictions need to be consistently enforced.

Unscrupulous attempts by property owners to manipulate the intent to remain senior housing have resulted in adverse judgments. In a 2003 federal case in California, Housing Rights Center et al. v. Galaxy Apartments, et al., the apartment complex and management company was sued for allegedly telling an expectant mother that it would not accept families with children because it was a "seniors only" complex. The Housing Rights Center sent "testers" to the building and learned that childless adult testers of all ages were accepted and only testers with children or who were expecting children were told that the complex was seniors only. Obviously, the apartment owner was not complying with the "intent" of the over 55 exemption and was ordered to pay the plaintiffs $51,000 and enter into a two year fair housing training program.

Some states require that housing intended and operated for occupancy by persons 55 years of age or older register with state agencies. You should consult your legal counsel for the applicable registration and renewal process in your state.

Age Verification

HOPA provides specific guidelines for "age verification". To protect your property, these procedures should be followed to the point that, at any given time in the past, you should be able to demonstrate, the percentage of units that were occupied by at least one person age 55 or older.

Section 100.307(d) provides that the following documents are considered "reliable" documentation of the age of the occupants:

(1) Driver's license;
(2) Birth Certificate;
(3) Passport;
(4) Immigration card;
(5) Military identification;
(6) Any other state, local, national, or international official documents containing a birth date of comparable reliability, or
(7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.

This last provision is useful in those cases where tenants who are believed to be over 55 years of age fail or refuse to provide proof of age to the park by allowing any other adult member of the household to sign a statement to the effect that the person in question is, in fact, at least 55 years of age.

**Tip: Make it a policy to obtain a written application for tenancy from every household and keep those applications for the length of the tenancy.

Section 100.307(g) further provides that: "If the occupants of a particular dwelling unit fail to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older." This section goes on to provide that such evidence may include government records or documents, such as a census; prior forms or applications; or a statement from an individual who has personal knowledge of the age of the occupants. In the latter case, the individual's statement must set forth the basis for such knowledge. Compliance with this provision most probably would be met by a park employee statement as to their opinion of the age of a tenant, based upon the tenant's appearance and, if applicable, the apparent age of the tenant's adult children.

A typical pitfall for owners of such properties is the HOPA requirement that the age verification information must be updated at least every two years, pursuant to Section 100.307(c).

**Tip: In addition to keeping the tenant's application, the management should consider developing a form which it distributes to all spaces at least once every two years, asking residents to confirm the names and ages of all persons who are currently residing in the home. This is probably good policy in any case, since a record of what adults are actually occupying a home is useful in other situations (e.g., naming all adults occupants in an unlawful detainer complaint.)

MHCO has a number of forms specifically designed for use in a "55 and Older Community". Form are available for MHCO members at MHCO.ORG

Reprinted from MHCO "Community Update" March/April 2005

Answer: For purpose of addressing this issue, I will assume that the community currently includes the operating costs for the well in the base rent, i.e. it is not a charge to residents outside of base rent that is allocated to them on a prorata (i.e. per space) basis. Well water is not something you may separately charge the residents for under ORS 90.532. There is no recognized method under Oregon law to recover it separately from – or outside of – base rent. Since base rent may only be increased in accordance with the 90-day rent raise protocol described in ORS 90.600, there is no pass-through alternative for communities serviced by well water for drinking. Subsection (8) of ORS 90.532 limits utility charges for water through the following means: A landlord may not assess a utility or service charge for water unless the water is provided to the landlord by a: (a) Public utility as defined in ORS 757.005; (b) Municipal utility operating under ORS chapter 225; (c) People’s utility district organized under ORS chapter 261; (d) Cooperative organized under ORS chapter 62; (e) Domestic water supply district organized under ORS chapter 264; or (f) Water improvement district organized under ORS chapter 552. (9) A landlord that provides utilities or services only to tenants of the landlord in compliance with this section and ORS 90.534 and 90.536 is not a public utility for purposes of ORS chapter 757. Your question does not indicate whether the new water system falls into one of the above categories. If it does, then you are entitled to assess a pass-through protocol, so long as the other submetering statutes are followed What follows is brief summary of the applicable statutes. As you will see, the issues are technical and complex. In short, you should secure competent legal advice from an expert familiar with your particular situation. This article or summary should not be relied upon to the exclusion of obtaining that legal advice. • 90.532 This statute sets forth the permissible billing methods park owners may use for their water charges. • 90.534 This statute describes how a landlord may charge for providing a utility or service directly to the residents’ spaces by apportionment of the costs per space. • 90.536 This statute describes the use of submeters to each space and the appropriate billing method. • 90.537 This statute instructs landlords on how and when they may convert from one billing method to another. • 90.538 This statute describes the tenants’ rights to inspect billing records when an owner converts from one billing system to another. In your case, since you are on well water, the only records I imagine you would have would be the well water maintenance costs, since there is no direct water charge to you. • 90.539 This statute describes the park owner’s rights to access a resident’s space to read the submeter. Conclusion. Without knowing more, it is hard to say definitively whether your proposed billing method [assuming the system is permissible under ORS 90.532(8)], would be allowed. However, my guess is that it is not. The reason is that the legislation and legislative history that resulted in these statutes is based upon much discussion and anecdotal experience. The categories and protocols are very specific. If you were to submeter, I suspect you could not “blend” your charges to include the equivalent of a fixed fee for everyone, with a metered rate for the higher users. The concept behind submetering is that everyone pays for exactly what they use – no more, no less. You proposed system does not appear to do that. Additionally, I do not believe you may “convert” to this new system without making some downward adjustment in base rent, to account for the fact that the residents will no longer be using the well water – and therefore should no longer be paying the well maintenance cost. [Of course, if the well water were converted to irrigation, that cost – already in the base rent - would seemingly be permissible.]

1. Inadequate response time to a resident's questions.

In an era when customer relations is the new icon of successful marketing it only makes sense to get back to a resident's question or action-item in a timely manner. What is timely? Within 48 hours, at least tell the customer that you are checking on the matter and will have an answer soon. That's better than taking a week with no answer, or worse, forgetting about it.

1. Poor resident relations & communications.

Like timely responses, overall customer communications is important. That includes such basic things as listening. Periodically walk the park just to talk with residents and see how they are doing. Does anyone need special help? Keep a note pad and pen in your pocket. Seek input. Better yet, issue report cards at least twice per year to see how they grade you. Help them coordinate social activities. Host spontaneous events like an ice cream social at the clubhouse. Ice cream is an inexpensive alternative to customers grumbling about invisible management and owners. But it all boils down to something quite simple: treat them like you want to be treated.

1. Lax rules & regulations enforcement.

Irregular enforcement of rules and regulations or poorly written rules can only lead to confusion and trouble. Make sure maintenance violations are quickly handled with the proper notice. But be fair, friendly and firm. If your rules seem to prompt lots of confusion and questions, get someone outside the park to read the rules with an eye to clarity and possible changes.

1. Poor park maintenance.

The visual appeal of your park is essential to both residents and non-residents who drive by your park. Always maintain its "curb appeal." Regularly check for light outages, broken fencing, faded paint and common-area cleanliness. Neglected streets are especially annoying to residents. Of special importance is your entrance. It should look sharp, upscale

and inviting. Invest in flowering plants to add seasonal color. A well-kept park makes necessary rent adjustments easier to accept.

1. Inadequate training of on-site managers.

If your park manager is not familiar with mobile home park residency laws, unintentional violations could result. Staff should be updated on the latest changes. don't assume they know. Training for on-site managers is mandatory. Bring them up-to-date with the latest aspects of insurance, OSHA and health safety issues, worker's compensation laws, Fair Housing and especially Mobilehome Park Landlord/Tenant Laws.

1. Poor marketing.

Like any business, you have to keep an eye on your local competition while you're keeping your park filled. But marketing is more than park fill and advertising. Marketing includes everything from market surveys to community and government relations, from promotions and incentives to get new residents, to good relations with current residents. Good marketing means keeping a close eye on the target audience you want and how you will sell and service them.

7. Mishandling delinquent rents.

Delinquent rents need quick action. Monitor them closely. Mishandling a notice can lead to delays/problems. Listen to a problem to decide if it's permanent/temporary. If it's permanent, act decisively. If temporary, you may want to set up a written payment plan if possible.

8. Getting the wrong insurance package.

Keeping costs down is important in any business, but so is risk management. That means insurance. The key is to look beyond the basic, generic policy and to seek property and general liability insurance with umbrella coverage. You want to insure your park for its actual insurable replacement value. Check the rating of the insurance carriers you are considering. Shop and compare rates/ratings.

1. Inadequate safety & accident prevention programs.

Insurance is not enough. Prevention is just as important. It's all about having a park safe for residents, their visitors and the park staff who serve them. Potholes in roads are unsafe. A child's cheerful bike ride could suddenly be ended by an unseen driver because bushes were not trimmed. Walkways must be well-lighted and free of cracks. Pools must be free of bacterial growth. Workers need equipment and training to avoid body movements that can injure them. Money spent on repairs, signage, equipment, and training is cheap compared to thousands in legal bills, insurance rate increases and time wasted.

1. Insufficient awareness of economic changes.

Like any business you have to cover costs and make a profit. In order to maximize your investment, keep abreast of changing local conditions around your park. An ill-informed decision could make your park unattractive to potential homeowners. For example, if a local plant closes or unemployment suddenly jumps, that's not a good time to raise rents. Even in healthy times, periodic small rent adjustments make more sense than one big increase that finds residents unprepared and prone to action. Subscribe to local newspapers. It's all about staying in touch and informed to make good decisions.

Note: This article orignially was published in MHCO's Community Update

Inadequate response time to a resident’s questions.

In an era when customer relations is the new icon of successful marketing it only makes sense to get back to a resident’s question or action-item in a timely manner.  What is timely?  Within 48 hours, at least tell the customer that you are checking on the matter and will have an answer soon.  That’s better than taking a week with no answer, or worse, forgetting about it.

Poor resident relations & communications.

Like timely responses, overall customer communications is important.  That includes such basic things as listening.  Periodically walk the park just to talk with residents and see how they are doing.  Does anyone need special help?  Keep a note pad and pen in your pocket.  Seek input.  Better yet, issue report cards at least twice per year to see how they grade you.  Help them coordinate social activities.  Host spontaneous events like an ice cream social at the clubhouse.  Ice cream is an inexpensive alternative to customers grumbling about invisible management and owners.  But it all boils down to something quite simple: treat them like you want to be treated.

Lax rules & regulations enforcement.

Irregular enforcement of rules and regulations or poorly written rules can only lead to confusion and trouble.  Make sure maintenance violations are quickly handled with the proper notice.  But be fair, friendly and firm.  If your rules seem to prompt lots of confusion and questions, get someone outside the park to read the rules with an eye to clarity and possible changes.

Poor park maintenance.

The visual appeal of your park is essential to both residents and non-residents who drive by your park.  Always maintain its “curb appeal.”  Regularly check for light outages, broken fencing, faded paint and common-area cleanliness.  Neglected streets are especially annoying to residents.  Of special importance is your entrance.  It should look sharp, upscale

and inviting.  Invest in flowering plants to add seasonal color.  A well-kept park makes necessary rent adjustments easier to accept.

Inadequate training of on-site managers.

If your park manager is not familiar with mobile home park residency laws, unintentional violations could result.  Staff should be updated on the latest changes.  Don’t assume they know.  Training for on-site managers is mandatory.  Bring them up-to-date with the latest aspects of insurance, OSHA and health safety issues, worker’s compensation laws, Fair Housing and especially Mobilehome Park Landlord/Tenant Laws.

Poor marketing.

Like any business, you have to keep an eye on your local competition while you’re keeping your park filled.  But marketing is more than park fill and advertising.  Marketing includes everything from market surveys to community and government relations, from promotions and incentives to get new residents, to good relations with current residents.  Good marketing means keeping a close eye on the target audience you want and how you will sell and service them.

Mishandling delinquent rents.

Delinquent rents need quick action.  Monitor them closely.  Mishandling a notice can lead to delays/problems. Listen to a problem to decide if it’s permanent/temporary.  If it’s permanent, act decisively.  If temporary, you may want to set up a written payment plan if possible.

Getting the wrong insurance package.

Keeping costs down is important in any business, but so is risk management.  That means insurance.  The key is to look beyond the basic, generic policy and to seek property and general liability insurance with umbrella coverage.  You want to insure your park for its actual insurable replacement value.  Check the rating of the insurance carriers you are considering.  Shop and compare rates/ratings.

Inadequate safety & accident prevention programs.

Insurance is not enough.  Prevention is just as important.  It’s all about having a park safe for residents, their visitors and the park staff who serve them.  Potholes in roads are unsafe.  A child’s cheerful bike ride could suddenly be ended by an unseen driver because bushes were not trimmed.  Walkways must be well-lighted and free of cracks.  Pools must be free of bacterial growth.  Workers need equipment and training to avoid body movements that can injure them.  Money spent on repairs, signage, equipment, and training is cheap compared to thousands in legal bills, insurance rate increases and time wasted. 

Insufficient awareness of economic changes.

Like any business you have to cover costs and make a profit.  In order to maximize your investment, keep abreast of changing local conditions around your park.  An ill-informed decision could make your park unattractive to potential homeowners.  For example, if a local plant closes or unemployment suddenly jumps, that’s not a good time to raise rents.  Even in healthy times, periodic small rent adjustments make more sense than one big increase that finds residents unprepared and prone to action.  Subscribe to local newspapers.  It’s all about staying in touch and informed to make good decisions.

Note:  This article orignially was published in MHCO's Community Update

Industry experts on the panel noted that retaining people who are effective with coworkers and the public is an ongoing process. Periodic employment reviews and training programs are generally well received. Most people want to know how well they are doing and what needs to improve. Coaching by regional managers and outside consultants is critical to recognizing employment and operational issues and correcting them before they cause other problems.

Second "tip" is also simple and can be summarized in one word: Documentation. It is critical that your community have well prepared written rental agreements whether for a long-term or month-to-month tenancy. There are, of course, pros and cons to both forms of tenancy. Certainly, in a rent control jurisdiction, long-term leases are preferred. However, it is well understood that obtaining an economically viable long-term lease can be difficult in rent controlled communities because of the legislative constraints on tenant negotiations. To the extent a local jurisdiction has vacancy control it is critical to pay attention to those opportunities to offer suitable long-term lease agreements so that future rent increases are known by both the resident and the park.

Another form of documentation to consider is arbitration agreements. There are intense debates among lawyers, and even within the industry, about whether or not arbitration is a desirable means of conflict resolution. If arbitration is going to be pursued, however, it is critical that the arbitration agreements reference and be drafted in accordance with the Federal Arbitration Act. While the State of California has an arbitration statute, it is effectively useless in compelling arbitration in most circumstances in a mobilehome park context. Numerous appellate State court decisions, when deciding whether or not arbitration can be compelled under the state arbitration law, are uniform in declining to enforce landlord/tenant arbitration agreements.

Documentation also means due consideration of park rules. Park rules are the functional equivalent of covenants, conditions and restrictions created for residential developments such as condominiums and planned unit developments. California law requires that park/community rules be reasonable and that, of course, is key to any judicial enforcement. Park owners differ as to whether they prefer general rules or more detailed rules. Again, there are pros and cons to each. However, when it comes to enforcement, it is this writer's experience that more particular detailed rules are typically easier to enforce than a more vaguely worded general rule where "reasonable" discretion by the park's resident manager might be seen by a judge as being less objective or personal. The courts in California tend to err on the side of tenants and thus making sure documentation (Rules) are objectively reasonable can greatly aid in their enforcement.

Tip three is getting to know your customer/market. Understanding who wants to live in your park and why it is important to properly serve that segment of the public and the larger "neighborhood community".

Consistent with knowing your market and customer, is knowing your competition. A park's competition might be other manufactured housing communities or, possibly, nearby apartment complexes, duplexes and triplexes in the area. Knowing who is renting and at what price is critical to knowing if your park is offering all that it can at a competitive price.

A fourth issue noted by regional park managers is the need to conduct a thorough park assessment. Many of the larger owners in the industry have an annual reassessment of each community including what potential capital expenses and improvements might be required. An annual or semiannual assessment can be done in conjunction with a documented risk assessment and analysis. Reviewing a community's streets, curbs, gutters and any recreational amenities can help a community be prepared for accidents; weather cause events and the ever present potential for litigation. A proactive system of having maintenance logs and keeping records of what has been repaired, when, and by whom is critical in the event of a simple slip and fall accident or, more significantly, if a "failure to maintain" lawsuit is threatened. In California failure to maintain allegations are routinely made against many communities that, from all objective criteria, are well-maintained and are highly desirable places to live.

Capital improvement and risk analysis assessments also lead to insight as to how a community is evolving. Is there a plan for replacing or improving the current housing stock? To the extent the park has the ability to help renovate or replace older functionally obsolete housing is a plan being considered. In some areas of California, the options of potential closure or conversion to a resident owned community are worthy of discussion. In rent controlled communities it might be prudent to have park owned homes so as realize appropriate revenue from the park.

One final tip: manage your revenue properly. Successful park operations need to follow and have a well-defined timeframe and process for rent collections. How rents are collected, managed and deposited is critical to cash flow. An annual review of the community to understand whether reserved parking or storage facilities should be provided, for a fee, should be considered. A number of communities have added solar panels to parking areas that generate revenue and help offset electricity costs in the park. Whether or not the park accepts electronic payments and how it processes resident checks can be critical to cash management. Knowing when and where funds are spent is ultimately the reason that the investment is either successful or not.

Thanks to Mindy Parish from Hometown America and Tom Pacelli from J&H Management for their participation and insight as to how operations for community owners can be managed proactively and efficiently.

Bill Dahlin is a partner with the Southern California law firm of Hart King and a leader in the firm's Manufactured Housing Industry Practice Group. He can be reached at 714-432-8700, 714-619-7084 (direct dial) or bdahlin@hartkinglaw.com.

Answer: Normally, I don't like to equivocate, but here, I'm going to have to do so. I suspect this answer might be quoted to the OHCS as a reason for declining to cooperate, so want to be careful how I answer. So rather than give a definitive "Yes" or "No" I'm going to give you some things to think about, before turning over documents to anyone other than a bona fide applicant who wants to rent a space. 1. Ask yourself: "How am I benefited by turning over my documents and forms?" From where I sit, I see no benefit. OHCS is not applying for tenancy. If they can explain to you what good comes to your park by turning over forms that you or MHCO paid to have developed, I might change my mind. 2. Ask yourself: "What can they do if I decline?" OHCS describes its services and functions as follows: "Oregon Housing and Community Services is Oregon's housing finance agency, providing financial and program support to create and preserve opportunities for quality, affordable housing for Oregonians of lower and moderate income. The current agency was created in 1991, when the legislature merged the Oregon Housing Agency with State Community Services. The coordination between housing and services creates a continuum of programs that can assist and empower lower-income individuals and families in their efforts to become self-reliant. OHCS administers federal and state antipoverty, homeless and energy assistance, and community service programs. OHCS also assists in the financing of single-family homes, the new construction or rehabilitation of multifamily affordable housing developments, as well as grants and tax credits to promote affordable housing." These are all worthwhile and laudable goals. But I don't see anything on their website [here] suggesting that they are an enforcement or regulatory agency. So, it appears that a polite refusal to share the forms and other documents you use to operate your community will not be met by any sanction. If they can explain to you what they will do if your refuse to cooperate, and it appears they could visit upon you and your community a parade of unpleasant horribles, I might change my mind. 3. Ask yourself: "Well, if they are not a regulatory or enforcement agency, can there be any harm in cooperating?" In looking at their website, it is clear that part of their mission is to: '_create and preserve opportunities for quality, affordable housing for Oregonians of lower and moderate income." Oregon law protects against discrimination in the sale, leasing or renting of housing, bases upon "source of income." [See, ORS 459A.421.] Today, there is a case pending before the United States Supreme Court, which will address whether discrimination arising from "disparate impact" is a violation of the Fair Housing laws. What is "disparate impact?" It means that you, as a landlord or manager, can be held to have discriminated against a member of a protected class - not because of any intent to do so - but merely because your rules, policies, or procedures in the application process, affect them more harshly than other people not in the class. It is clear from their website and stated mission, that fair housing is an important issue with the folks at OHCS. That's a good thing. But my mission is to protect - through education - MHCO's members with good risk management procedures. My experience has been that most alleged violations of fair housing laws are inadvertent, sometimes through the use of testers. That being the case, my concern in voluntarily turning over forms and documents used in managing your community, someone at OHCS might see a policy, rule, or screening criteria, that they interpret as a per se' violation of state, federal, county or city housing laws. [To put a fine point on this, go to the Fair Housing Council of Oregon's chart here, identifying the plethora of laws you are already expected to comply with, depending on the location of your community.] While I do not see that OHCS could do anything to you if they saw a potential violation, I certainly could see the documents, or information gleaned from them, being turned over to private or public entities that could do something, either through civil action or regulatory action. So, if OHCS can explain to you (a) why they need the information; (b) what they would do if they did see something they didn'tlike; and (c) what assurances they can give you that they will not turn the documents or information over to a third party for some sort of enforcement action. It they can provide you with such assurances, I might change my mind. As I have said above, OHCS's aspirational goals are laudable, and we should have no issue with them. If you want to assist in those goals, you should financially contribute to their cause. But you must also be prudent in your management decisions, balancing the risks versus the benefits, of cooperation. I see no benefits, but I do see great risks.

Answer: One of the most common types of residential eviction is also the most misunderstood - the nonpayment of rent eviction. A good tenant's attorney can frequently retain possession for his/her client, even though they clearly failed to pay the rent when due. All it takes is a little familiarity with that labyrinthine set of statutes in the Oregon Residential Landlord Tenant Act, or "ORLTA."

It is common knowledge that unless the parties have agreed otherwise, rent is due on the first day of each month. Rent does not become delinquent until after the expiration of seven days, including the date rent is first due. An eviction cannot be filed until after the expiration of 72 hours' written notice. This means that the earliest a 72-hour notice may be delivered to the resident is on the 8th day of the month, and the earliest one may file for eviction is on the 11th day of the month, i.e. 72 hours hence.[1]

However, oftentimes it is not until the first appearance following the filing of the eviction that the landlord discovers that the resident has gone to an attorney and is now raising various counterclaims under ORLTA. Some of these counterclaims may be without any real factual basis, and may have been raised primarily to secure either more time or some other concession from the landlord.

Assuming that the resident either has the money to pay the rent, or can somehow gather it together prior to a trial, this is a battle that the landlord is almost sure to lose. The reason is found in the rent-tender statute, ORS 90.370. Essentially, this statute, and several cases that have construed it, permit the resident to tender the past due rent into Court, even though it was not paid during the 72-hour period set forth in the notice. At the conclusion of the case, if the Court finds that the amount tendered into Court covers the amount found to be due, the resident automatically retains possession.

Example: Landlord files an eviction against resident based upon the failure to pay monthly rent of $400. Resident files counterclaims alleging ORLTA violations, and claims that because of the deficiencies, the "market rent" (as opposed to the "contract rent", i.e. the amount due under the rental agreement) for the premises is only $100 per month - not $400 per month. Resident has had possession for seven month, six of which he paid the full rent that was due, and on the seventh month, i.e. the one for which the eviction was filed, he withheld the monthly rent. But he tendered the full $400 rent into court for the seventh month, and counterclaimed for $1,800, i.e. $300 for each of the prior six months' possession for which he "overpaid". Assuming that the counterclaims were made in good faith, here are the various scenarios:

1. Worst Case for Landlord: The Court finds in favor of the resident, awarding him a judgment for $1,800 (6 months X $300) plus costs and attorney fees.

2. Best Case for Landlord: Although the Court finds against the resident on his counterclaims, and finds that the amount due to the landlord is the full $400, since it has already been tendered into Court, the resident is allowed to retain possession, and may submit a request for recovery of his costs and attorney fees. This is because subsection (1)(b) of ORS 90.370 provides that "If no rent remains due after application of this section and unless otherwise agreed between the parties, a judgment shall be entered for the tenant in the action for possession. (Italics mine.) Thus, the resident is still the prevailing party and entitled to an award of attorney fees.[2]

The only exception to the "Best Case" scenario is where the landlord is able to convince the Court that the resident's counterclaims are improper and/or have been filed in bad faith. If so, the rent tender will do the resident no good, and if he loses his counterclaims, he will be evicted and become subject to a judgment for the landlord's costs and attorney fees.

So, when should the landlord fight to evict a resident for nonpayment of rent, where the resident has tender rent into Court? Only in the following situations: (a) Where the landlord is confident that he/she can convince the Court that the counterclaims were filed in bad faith; or, (b) Where the rent tender is believed to be inadequate and the resident's attorney does not realize that the shortfall could be tendered into Court so that no rent would remain due '_after application of this section... ." In virtually every other situation, the odds of winning a contested nonpayment of rent eviction where there has been a full rent tender are virtually nonexistent.[3]

[1] This analysis does not consider the 144-hour notice provisions of ORS 90.394(2)(b). However, the rationale is exactly the same whether the notice is based upon 72 hours or 144 hours. The only difference is the calculation of the time periods.

[2] ORS 90.255 provides: In any action on a rental agreement or arising under this chapter, reasonable attorney fees at trial and on appeal may be awarded to the prevailing party together with costs and necessary disbursements, notwithstanding any agreement to the contrary. As used in this section, prevailing party means the party in whose favor final judgment is rendered. (Italics mine.)

[3] These conclusions are based not only upon a reading of the statute, but also several well-established Oregon cases construing it.

Editor's Note:  The 2018 Oregon Primary Election on last Tuesday was brutal for Oregon community owners and landlords and business owners.   It was a dismal election night for some of Oregon's strongest opponents of rent control.  In some cases the primary election winners - staunch rent control advocates - will face NO opposition in the November General Election.  The loss of Senator Rod Monroe (Senate District 24) will have a profound impact in the 2019 Oregon Legislative Session.  Senator Monroe was the one vote stopping rent control in the Senate in the 2017 Oregon Legislative Session.  MHCO will be monitoring and engaged in the upcoming General Election  - but with Tuesday's election results the 2019 Oregon Legislative Session may consist of super majority Democrats in both chambers and a definite leftward tilt that will make rent control and other anti-landlord and anti-business all that more challenging to defeat.  The following article from "The Oregonian" sums up the key legislative races in Oregon.  

The following article is from "Oregonian", "OregonLive" - Posted May 15, 2018 at 09:59 PM | Updated May 16, 2018 at 12:04 PM

Oregon's liberal Democrats notched key wins Tuesday in legislative primaries that focused on such hot-button issues as housing affordability and the state's public pension crisis.

With the Legislature likely to consider proposals on tax increases, public pension reform and greenhouse gas emissions next year, the constituencies that support and oppose those plans - businesses, public employee unions and environmentalists - poured money into certain primary contests.

The vote also set the stage in a couple of swing districts that are likely to be intensely contested in November's general election, as Democrats attempt to win a supermajority and Republicans do their best to block them. Democrats need to pick up just one seat in the House and Senate to achieve the three-fifths supermajority necessary to pass bills raising revenue without Republican support.

Tuesday's primaries included 16 seats up for grabs in the Senate, with five Democrats running unopposed. All 60 seats were up in the House, with seven Republicans and 24 Democrats running unopposed.

SENATE DISTRICT 24

This East Portland district was one of the most closely watched and high-spending races in the May primary, with civil rights attorney Shemia Fagan handing a decisive defeat to five-term Democratic incumbent Rod Monroe. Fagan won 62 percent to Monroe's 25 percent. Kayse Jama, a 43-year-old Somali immigrant and community organizer collected 13 percent of the vote.

Monroe, 75, a five-term senator, was vulnerable because the race centered on housing. The owner of a 51-unit apartment complex in East Portland, Monroe alienated tenant advocates and fellow Democrats last year when he opposed a bill that would have restricted evictions and allowed some rent controls.

Monroe spent heavily to defend his seat, raising nearly $385,000 -- much of it from the real estate industry -- and spent most of it. A group largely funded by the real estate industry also raised more than $360,000 and spent much of it on polling in support of Monroe and advertising against Fagan. 

That wasn't enough to fend off Fagan, who moved into Monroe's Senate district last year. The Happy Valley resident has raised $310,000, with big contributions from the state's public employee unions and the Oregon Trial Lawyers Association. The recently formed political action committee A Progressive Voice for Oregon also paid for advertising against Monroe, although the committee funded mostly by trial lawyers and public employee unions did not disclose the purpose of most of its $66,000 in reported spending.  

Fagan made affordable housing her top priority and said she would put an end to no-cause evictions and allow cities to enact rent controls.

SENATE DISTRICT 11

Senate President Peter Courtney, a Salem Democrat, faced his first primary challenger in 20 years. Though Courtney handily beat Joyce Judy -- 65 percent to 35 percent -- the race put the state's longest-serving current lawmaker and most-tenured Senate president in the position of defending his record against attacks by Judy and other more liberal Democrats.

SENATE DISTRICT 3

This is poised to be a pivotal race in the general election, potentially giving Democrats the additional position needed to achieve a supermajority in the Senate. It opened up after Republican Sen. Alan DeBoer decided not to seek reelection.

Democrats had four candidates: community services nonprofit employee Kevin Stine, television producer Jeff Golden, behavioral health administrator Athena Goldberg and physician Julian Bell. Golden had a decisive lead Tuesday evening, with 52 percent of the vote. Athena Goldberg trailed with 36 percent.

On the Republican side, technology company founder and CEO Jessica Gomez claimed victory with 54 percent of the vote, over certified public accountant Curt Ankerberg's 46 percent. Gomez also worked as one of DeBoer's legislative aides.

HOUSE DISTRICT 32

This Democratic primary was likely the most-watched House race among political insiders. It pitted Tim Josi, a full-time Tillamook County Commissioner backed by outgoing Rep. Deborah Boone, against two rivals running to the left of Josi. Child welfare worker Tiffiny Mitchell, who moved to Oregon from Utah about three years ago, led with 39 percent Tuesday night and Josi had 31 percent. John Orr, who splits his time between part-time jobs as a municipal court judge and biomass energy contractor, followed with 30 percent.

A central issue in the race was whether public employees should begin contributing to the public pension fund. Orr and Mitchell said the state should not require public employees to contribute. Josi said the state should consider requiring employees to put money into the fund, but said he remains undecided on the issue.

HOUSE DISTRICT 20

Selma Pierce, a retired dentist from Salem, was recruited by House leadership to challenge the potentially vulnerable Democratic incumbent, Paul Evans. She easily bested her opponent in the Republican primary, garnering 61 percent of ballots versus Kevin Chambers' 39 percent.

Pierce, the wife of former gubernatorial candidate Bud Pierce, is a longtime volunteer in the Salem area and says she'll prioritize improving graduation rates and vocational education; providing more robust services to those suffering mental health issues; and private sector affordable housing solutions.

This is a swing district some consider to be the closest in the state. Democrats have only a 3.6 percentage point registration margin and Evans, an Air Force veteran and Western Oregon University professor, eked out a victory by less than 2,000 votes in 2016.

HOUSE DISTRICT 52

Democrats have long set their sights on this district, and the departure of former Rep. Mark Johnson last year to take a short-lived job leading a business group put the seat in play.

On the Republican side, Rep. Jeffrey Helfrich -- who was selected by county commissioners to serve the remainder of Johnson's term -- was the clear winner with 98 percent of the vote.

Democrats fielded educator and environmental activist Aurora del Val, who fought the Nestle water bottling proposal, and academic adviser Anna Williams. Del Val withdrew from the race earlier this year but was still on the ballot. Williams held a large lead with 77 percent over del Val's 22 percent.

HOUSE DISTRICT 26

Gun control was a central issue in this Republican primary. Incumbent Rich Vial garnered 70 percent of the vote, easily beating challenger Daniel Laschober. Laschober entered the race after Vial and two other House Republicans joined Democrats to pass a lawbroadening an existing ban on people owning guns because of domestic violence or stalking convictions. Vial is a lawyer and Laschober is a software and finance consultant.

Rule 1. Do not accept rent if you know that the tenant is in violation of the Park Rules and you intend to issue a 30-day notice of default. Example: If the tenant has an unpermitted pet or has someone living with him/her who has not applied for residency as a tenant do not accept rent if you are planning to give the tenant a 30-day notice of default. As soon as you are aware of a violation give the appropriate written notice to the tenant. If the notice is simply a warning asking the tenant to correct the situation it probably is safe to accept rent since you are asking the tenant to cooperate voluntarily, rather than actually terminating their tenancy.

Rule 2. Do not accept performance by a tenant if it varies from the terms of the rental agreement or Rules and Regulations. If the rental agreement provides for a late charge after the 4th day of the month, you should not accept late rent on the 5th day or thereafter without assessing the late charge. A consistent pattern of accepting late rent without assessing the late charge may be construed as a waiver of the right to do so later. This is also true where you have not assessed it against one tenant and then try to assess it against another.

Rule 3. Unless you and the tenant have agreed otherwise in writing, you will waive the right to terminate a rental agreement for nonpayment of rent if you accept partial rent after issuing a 72 or 144 hour notice. The reason is simple: Oregon law says that you may avoid a waiver and accept partial rent, if the arrangement is set forth in a written agreement signed by both parties. Say, for example, that following issuance of a 72 or 144 hour notice to pay rent you enter into a written agreement with the tenant which provides that you will accept a partial payment of $100 on the 10th with the balance to be paid by the 20th. If the tenant pays the $100 but fails to pay the balance on the 20th as agreed you may immediately file for eviction. However, your written agreement with the tenant should also include an express provision that if the balance is not paid as agreed - no new 72 or 144 hour notice will be required before filing the eviction.

Rule 4. If you have already issued a 20 or 30-day notice for violation of the park rules you may accept rent so long as it is prorated to the termination date specified in the notice. Never accept a rent tender which extends beyond the period in the rules violation notice. For example, if on May 15, you gave the tenant a 30-day notice which requires correction by June 15th, you should only accept rent from the tenant for the first 15 days of June. Accepting a full month's rent means that the tenant has"bought" the right to remain in the park for all of June - which is inconsistent with your demand that he/she cure the violation or vacate by the 15th. If the violation notice is for 30 days and its delivery can be put off a few days it is recommended that it be issued on the first of the month so no proration would be required.

Rule 5. If you have filed an eviction against the tenant "for cause" you may accept rent beyond the period in the notice if (a) you give the tenant written notice that acceptance of rent will not waive your right to proceed with the eviction and (b) the amount paid does not extend beyond the date the rent is tendered. You should not accept rent prospectively. For example, assume that (a) your 30-day notice on May 15 expressly notified the tenant of your right to accept rent without waiver and (b) you filed an eviction on June 16th, and (c) on June 25 the tenant tendered rent up to June 25 - you could accept it. In other words, acceptance of a tenant's rent solely for the period he/she has already been there will not constitute a waiver of the right to continue your eviction against the tenant.

Rule 6. You may serve a 72 or 144 hour notice of nonpayment of rent upon a tenant against whom you have already filed an eviction for cause. This is expressly allowed by Oregon Law. Although the statute does not specifically say so, it is strongly recommended that the amount sought in the 72 or 144 hour notice not demand payment for period beyond the date of issuance on the notice. For example, if you filed for eviction on June 1 because of an uncured rules violation on June 8th you could issue a notice for nonpayment of rent - however, the notice should only demand rent for the first 8 days of June. If you waited until June 25 to issue the nonpayment notice you would demand rent for the first 25 days of the month.

Admittedly, these rules can be confusing. If you have any questions you should speak to an attorney familiar with landlord-tenant laws. If in doubt, refuse the tenant's rent tender until you are absolutely sure that acceptance will not constitute a waiver of your rights. If the defaulting tenant mails in a rent check for more than is acceptable based upon the above rules or places it in a drop box at the office it should be promptly returned within six (6) days. Holding on to such payment beyond that time could give rise to the argument that you waived your right to proceed with the eviction.

Answer.   ORS 90.100(38) defines the “Rental agreement” as: “…all agreements, written or oral, and valid rules and regulations adopted under ORS 90.262 or 90.510 (6) embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises. “Rental agreement” includes a lease. A rental agreement shall be either a week-to-week tenancy, month-to-month tenancy or fixed term tenancy. (Emphasis added.)

So technically, “rules” are really a part of the rental agreement. Of the many definitions of terms in ORS 90.100, there is no separate definition of “rules”.  However, they are given different treatment throughout the Oregon Residential Landlord Tenant Agreement.

For example, ORS 90.262 (Use and occupancy rules and regulations; adoption; enforceability; restrictions) explains the intent and purpose behind rules and regulations. It provides:

90.262 (1) A landlord, from time to time, may adopt a rule or regulation, however described, concerning the tenant’s use and occupancy of the premises. It is enforceable against the tenant only if:

      (a) Its purpose is to promote the convenience, safety or welfare of the tenants in the premises, preserve the landlord’s property from abusive use, or make a fair distribution of services and facilities held out for the tenants generally;

      (b) It is reasonably related to the purpose for which it is adopted;

      (c) It applies to all tenants in the premises in a fair manner;

      (d) It is sufficiently explicit in its prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant must or must not do to comply;

      (e) It is not for the purpose of evading the obligations of the landlord; and

      (f) The tenant has written notice of it at the time the tenant enters into the rental agreement, or when it is adopted.

      (2) If a rule or regulation adopted after the tenant enters into the rental agreement works a substantial modification of the bargain, it is not valid unless the tenant consents to it in writing.

      (3) If adopted, an occupancy guideline for a dwelling unit shall not be more restrictive than two people per bedroom and shall be reasonable. Reasonableness shall be determined on a case-by-case basis. Factors to be considered in determining reasonableness include, but are not limited to:

      (a) The size of the bedrooms;

      (b) The overall size of the dwelling unit; and

      (c) Any discriminatory impact on those identified in ORS 659A.421.

      (4) As used in this section:

      (a) “Bedroom” means a habitable room that:

      (A) Is intended to be used primarily for sleeping purposes;

      (B) Contains at least 70 square feet; and

      (C) Is configured so as to take the need for a fire exit into account.

      (b) “Habitable room” means a space in a structure for living, sleeping, eating or cooking. Bathrooms, toilet compartments, closets, halls, storage or utility space and similar areas are not included. [Formerly 90.330]

The above element of lawful rules bear re-reading, since occasionally, I have seen landlord enforcement actions against tenants attacked for failure to comply with ORS 90.262, especially the portion of the statute that provides rules must be “…reasonably related to the purpose for which it is adopted.”

ORS 90.302(3)(a) (Fees allowed for certain landlord expenses; accounting not required; fees for noncompliance with written rules; tenant remedies) provides that

A landlord may charge a tenant a fee under this subsection for a second noncompliance or for a subsequent noncompliance with written rules or policies that describe the prohibited conduct and the fee for a second noncompliance, and for any third or subsequent noncompliance, that occurs within one year after a written warning notice described in subparagraph (A) of this paragraph. Except as provided in paragraph (b)(H) [unauthorized pet] of this subsection, the fee may not exceed $50 for the second noncompliance within one year after the warning notice for the same or a similar noncompliance or $50 plus five percent of the rent payment for the current rental period for a third or subsequent noncompliance within one year after the warning notice for the same or a similar noncompliance. 

ORS 90.510(2) (Statement of Policy) requires that both the rental agreement and the rules “…shall be attached as an exhibit to the statement of policy.”

Subsection (5) of ORS 90.510 (Statement of Policy) has similar, but not exactly the same language as quoted in ORS 90.262 above:

  (6) Every landlord who rents a space for a manufactured dwelling or floating home shall provide rules and regulations concerning the tenant’s use and occupancy of the premises. A violation of the rules and regulations may be cause for termination of a rental agreement. However, this subsection does not create a presumption that all rules and regulations are identical for all tenants at all times. A rule or regulation shall be enforceable against the tenant only if:

      (a) The rule or regulation:

      (A) Promotes the convenience, safety or welfare of the tenants;

      (B) Preserves the landlord’s property from abusive use; or

      (C) Makes a fair distribution of services and facilities held out for the general use of the tenants.

      (b) The rule or regulation:

      (A) Is reasonably related to the purpose for which it is adopted and is reasonably applied;

      (B) Is sufficiently explicit in its prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant shall do or may not do to comply; and

      (C) Is not for the purpose of evading the obligations of the landlord.

      (7)(a) A landlord who rents a space for a manufactured dwelling or floating home may adopt a rule or regulation regarding occupancy guidelines. If adopted, an occupancy guideline in a facility must be based on reasonable factors and not be more restrictive than limiting occupancy to two people per bedroom.

      (b) As used in this subsection:

      (A) Reasonable factors may include but are not limited to:

      (i) The size of the dwelling.

      (ii) The size of the rented space.

      (iii) Any discriminatory impact for reasons identified in ORS 659A.421.

      (iv) Limitations placed on utility services governed by a permit for water or sewage disposal.

      (B) “Bedroom” means a room that is intended to be used primarily for sleeping purposes and does not include bathrooms, toilet compartments, closets, halls, storage or utility space and similar areas.

ORS 90.610(3) (Informal dispute resolution; notice of proposed change in rule or regulation; objection to change by tenant) explains how rules are changed:

The landlord may propose changes in rules or regulations, including changes that make a substantial modification of the landlord’s bargain with a tenant, by giving written notice of the proposed rule or regulation change, and unless tenants of at least 51 percent of the eligible spaces in the facility object in writing within 30 days of the date the notice was served, the change shall become effective for all tenants of those spaces on a date not less than 60 days after the date that the notice was served by the landlord.

      (4) One tenant of record per eligible space may object to the rule or regulation change through either:

      (a) A signed and dated written communication to the landlord; or

      (b) A petition format that is signed and dated by tenants of eligible spaces and that includes a copy of the proposed rule or regulation and a copy of the notice.

      (5) If a tenant of an eligible space signs both a written communication to the landlord and a petition under subsection (4) of this section, or signs more than one written communication or petition, only the latest signature of the tenant may be counted.

      (6) Notwithstanding subsection (4) of this section, a proxy may be used only if a tenant has a disability that prevents the tenant from objecting to the rule or regulation change in writing.

      (7) The landlord’s notice of a proposed change in rules or regulations required by subsection (3) of this section must be given or served as provided in ORS 90.155 and must include:

      (a) Language of the existing rule or regulation and the language that would be added or deleted by the proposed rule or regulation change;

Subsection (7) of ORS 90.610 provides the statutory form to follow when changing rules.

In regards to rental agreements, ORS Chapter 90.510(4) mandates the minimal provisions that must appear in the rental agreement:

Every landlord who rents a space for a manufactured dwelling or floating home shall provide a written rental agreement, except as provided by ORS 90.710 (2)(d) [enforceability of oral rental agreements]. The agreement must be signed by the landlord and tenant and may not be unilaterally amended by one of the parties to the contract except by:

      (a) Mutual agreement of the parties;

      (b) Actions taken pursuant to ORS 90.530, 90.533, 90.537, 90.543 (3), 90.600, 90.725 (3)(f) and (7) or 90.727; or

      (c) Those provisions required by changes in statute or ordinance.

      (5) The agreement required by subsection (4) of this section must specify:

      (a) The location and approximate size of the rented space;

      (b) The federal fair-housing age classification;

      (c) The rent per month;

      (d) All personal property, services and facilities to be provided by the landlord;

      (e) All security deposits, fees and installation charges imposed by the landlord;

      (f) Any facility policy regarding the planting of trees on the rented space for a manufactured dwelling;

      (g) Improvements that the tenant may or must make to the rental space, including plant materials and landscaping;

      (h) Provisions for dealing with improvements to the rental space at the termination of the tenancy;

      (i) Any conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;

      (j) That the tenant may not sell the tenant’s manufactured dwelling or floating home to a person who intends to leave the manufactured dwelling or floating home on the rental space until the landlord has accepted the person as a tenant;

      (k) The term of the tenancy;

      (L) The process by which the rental agreement or rules and regulations may be changed, which shall identify that the rules and regulations may be changed with 60 days’ notice unless tenants of at least 51 percent of the eligible spaces file an objection within 30 days; and

      (m) The process by which the landlord or tenant shall give notices.

Conclusion.  So, in my opinion, the differences between rules vs. rental agreement, can be generally summarized as follows:

• The contents of what goes into rules, are not specifically described in the Oregon Residential Landlord Tenant Laws – the only general guidance is that they must be fairly applied, and reasonably related to the purpose for which they were enacted.
• The rental agreement must address certain issues, as set forth in ORS 90.510(4), above.
• A violation of either the rules or the rental agreement can result in a for cause notice of termination under ORS 90.630.
• While rental agreements cannot generally[1] be unilaterally changed by the landlord, there is a clear process under the law for amending the rules.
• So while “rules” are technically a part of the overall “rental agreement” between the landlord and tenant, they are the “mortar” that fills in the gaps the rental agreement doesn’t cover. So for example, while the rental agreement may require that tenants conduct themselves in such a manner as to preserve their neighbor’s quiet enjoyment of their spaces, the rules may address more specifics of this duty, such as lawn mowing, leaf blowing, loud parties, etc.
• I frequently see much unnecessary overlap in rules and rental agreements, e.g. covering the same things, or covering them inconsistently. This is unfortunate, since it can create confusion among tenants. My rule of thumb would be that in the event of an inconsistency, you should not try to enforce a specific prohibition in one of the documents, if the other is more lenient. Or to put it another way, in the event of two provisions addressing the same issue, landlords should enforce the more lenient of them.

[1] There are several exceptions relating to changes which, for example, permit landlords to take advantage of newer statutes that give rights not formerly described by the law or found in rental agreements, such as the right to submeter spaces, etc.