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 Published: Friday, February 24, 2012, 10:30 PM Updated: Saturday, February 25, 2012, 9:56 AM Helen Jung, The Oregonian By Helen Jung, The Oregonian The Oregonian

When the Sazykin family's 14-year-old son rode his scooter on pathways around the Wah Mai Terrace Apartments complex in Southeast Portland, the apartment manager fined his parents $20.

When they left their children's play furniture and other items out on the patio, the apartment manager issued a few warnings and then another $20 fine.

The family's actions violated apartment policies, according to a complaint filed last September in Multnomah County Circuit Court. But under an agreement with the state announced Friday, the apartment complex and its property management firm will pay nearly $65,000 to tenants, the state and a legal aid organization. They will have to ditch policies that tenants criticized as discriminating against families.

And they will have to install a playground structure.

"It's a really good (result) for families in Oregon," said Christina Dirks, who represented the Sazykins, one of several families who made claims against the apartment complex and property management firm Norris & Stevens. "It's helping to assure that families in our community have equal access to enjoy their rental housing."

Under the agreement, Wah Mai Terrace and Norris & Stevens, do not admit any wrongdoing.

Norris & Stevens representatives did not return a call for comment.

Jonathan Radmacher, an attorney for the Wah Mai Terrace owners, said the policies were never meant to be anti-children.

He noted that the apartment complex owners and property managers were quick to address the problems as soon as they were brought up.

The policy that barred tenants from storing items other than bikes and barbecue grills on their patios was to keep the look of the complex presentable and clean, Radmacher said. The policy that prohibited children from riding bikes, tricycles, Big Wheel-type toys, skateboards and rollerskates on the property was out of concern for older residents, he said.

"There are lots of places to play in the neighborhood," he said, noting Ventura Park and Floyd Light Middle School, both about a block or two away from the complex at SE 111th and SE Stark.

He criticized the state, saying that the apartment complex and property managers were not aware of the discrimination concerns until the state intervened and threatened them with tens of thousands of dollars in state legal fees. "I know my client would never want to have any policy that's discriminatory... They would always want that brought to their attention, and they would fix it," he said. About $35,000 of the settlement will go to six current and former tenants. Norris & Stevens and Wah Mai Terrace also must pay attorney fees and costs of $20,000 to the Oregon Department of Justice and $9,816.36 to Legal Aid Services of Oregon.

Representatives for the two entities must participate in training on fair housing practices.

They also cannot try to collect fines and other debts that were levied against tenants under the potentially unlawful" policies.

Norris & Stevens

The Fair Housing Act and Section 504 of the Rehabilitation Act prohibit housing providers from denying or limiting housing to persons with disabilities and from refusing to make reasonable accommodations in policies or practices.

The case came to HUD’s attention when the resident, who uses a wheelchair, filed a complaint alleging that his request for an assigned parking space in the development’s garage had been denied. The resident claimed that the owners and manager subsequently allowed him to park in non-assigned accessible spaces in the garage, but they denied him the key that’s necessary to enter the garage and to use the elevator. As a result, each time the resident wanted to enter the garage, he allegedly had to wait for another resident to open the gate, then follow that person in so he could use the elevator. The housing providers denied that they discriminated against the resident.

“To a person with mobility limitations, a designated parking space can mean the difference between merely living in a development and truly being able to call a place home,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue working to ensure that housing providers meet their obligation to grant the reasonable accommodations persons with disabilities need and are entitled to under the law.”

Answer: The Oregon landlord-tenant law does not "require" that a landlord accept partial payments. To the contrary, it provides that it is a "tenant's duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement... ."

A landlord may refuse to accept the tender of partial rent of rent that is not paid on time. However, if the landlord agrees to accept a partial payment of rent he/she may do so, although it should be clearly described in a well-drafted written agreement.

Such partial payments do not constitute a waiver of the right to later demand prompt performance in the future. Nor do they prevent the landlord from terminating the tenancy if the balance of the rent is not paid as agreed.

However, there are some pitfalls that the landlord must be aware of: Acceptance of a partial payment waives the right of termination if accepted after issuance of a 72-hour or 144-hour notice of termination.

When presented with a partial payment issue, landlords are wise to closely review ORS 90.417. Lastly, consistent application is important - i.e. if the landlord has permitted partial payments by some residents, he/she would be hard-pressed to disallow others the right to do so without good reason.

Here are a summary of how ORS 90.417 applies to this case:

• A tenant's duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement.
• A landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely.
• A landlord may accept a partial payment of rent. Doing so does not constitute a waiver, if properly documented. Here is what the landlord must do to avoid waiver:
  • The partial payment must have been made before the landlord issued a 72-hour or 144-hour notice for nonpayment.
  • The landlord must enter into a written agreement with the tenant stating that the acceptance does not constitute waiver.
  • The agreement should provide that the landlord may terminate the rental agreement and take possession as provided in the Oregon FED laws if the tenant fails to pay the balance of the rent by a time certain.
  • The tenant must agree in writing to pay the balance by a date/time certain.
• If the balance is not paid according to this written agreement, the landlord may serve a 72-hour or 144-hour nonpayment of rent notice - but it must be served no earlier than would have been permitted under the rental agreement and the law, had no rent been accepted.[1]
• Notwithstanding a landlord's acceptance of a partial payment of rent, the tenant continues to owe the landlord the unpaid balance of the rent. In other words, acceptance of partial rent does not eliminate the duty to pay the balance.

[1] This somewhat confusing statement is meant to avoid a situation where the agreement for partial payment called for payment of the balance before rent would have otherwise been due. For example, if rent is due on the first and late on the 7th, then the earliest a 72-hour or 144-hour notice could be served would be the 8th day of the month. Thus the agreement for payment of the balance of the rent may not require that the tenant pay it before the 7th day of the month.

Answer: The Oregon landlord-tenant law does not "require" that a landlord accept partial payments. To the contrary, it provides that it is a "tenant's duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement... ."

A landlord may refuse to accept the tender of partial rent of rent that is not paid on time. However, if the landlord agrees to accept a partial payment of rent he/she may do so, although it should be clearly described in a well-drafted written agreement.

Such partial payments do not constitute a waiver of the right to later demand prompt performance in the future. Nor do they prevent the landlord from terminating the tenancy if the balance of the rent is not paid as agreed.

However, there are some pitfalls that the landlord must be aware of: Acceptance of a partial payment waives the right of termination if accepted afterissuance of a 72-hour or 144-hour notice of termination.

When presented with a partial payment issue, landlords are wise to closely review ORS 90.417. Lastly, consistent application is important - i.e. if the landlord has permitted partial payments by some residents, he/she would be hard-pressed to disallow others the right to do so without good reason.

Here are a summary of how ORS 90.417 applies to this case:

• A tenant's duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement.
• A landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely.
• A landlord may accept a partial payment of rent. Doing so does not constitute a waiver, if properly documented. Here is what the landlord must do to avoid waiver:
  • The partial payment must have been made beforethe landlord issued a 72-hour or 144-hour notice for nonpayment.
  • The landlord must enter into a written agreement with the tenant stating that the acceptance does not constitute waiver.
  • The agreement should provide that the landlord may terminate the rental agreement and take possession as provided in the Oregon FED laws if the tenant fails to pay the balance of the rent by a time certain.
  • The tenant must agree in writing to pay the balance by a date/time certain.
• If the balance is not paid according to this written agreement, the landlord may serve a 72-hour or 144-hour nonpayment of rent notice - but it must be served no earlier than would have been permitted under the rental agreement and the law, had no rent been accepted.[1]
• Notwithstanding a landlord's acceptance of a partial payment of rent, the tenant continues to owe the landlord the unpaid balance of the rent. In other words, acceptance of partial rent does not eliminate the duty to pay the balance.

[1]This somewhat confusing statement is meant to avoid a situation where the agreement for partial payment called for payment of the balance before rent would have otherwise been due. For example, if rent is due on the first and late on the 7th, then the earliest a 72-hour or 144-hour notice could be served would be the 8thday of the month. Thus the agreement for payment of the balance of the rent may not require that the tenant pay it before the 7thday of the month.

Answer: The Oregon landlord-tenant law does not “require” that a landlord accept partial payments. To the contrary, it provides that it is a “tenant’s duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement….”

A landlord may refuse to accept the tender of partial rent of rent that is not paid on time. However, if the landlord agrees to accept a partial payment of rent he/she may do so, although it should be clearly described in a well-drafted written agreement.

Such partial payments do not constitute a waiver of the right to later demand prompt performance in the future. Nor do they prevent the landlord from terminating the tenancy if the balance of the rent is not paid as agreed.

However, there are some pitfalls that the landlord must be aware of: Acceptance of a partial payment waives the right of termination if accepted after issuance of a 72-hour or 144-hour notice of termination.

When presented with a partial payment issue, landlords are wise to closely review ORS 90.417. Lastly, consistent application is important – i.e. if the landlord has permitted partial payments by some residents, he/she would be hard-pressed to disallow others the right to do so without good reason. Here are a summary of how ORS 90.417 applies to this case:

• A tenant’s duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement.

• A landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely.

• A landlord may accept a partial payment of rent. Doing so does not constitute a waiver, if properly documented. Here is what the landlord must do to avoid waiver: o The partial payment must have been made before the landlord issued a 72-hour or 144-hour notice for nonpayment. o The landlord must enter into a written agreement with the tenant stating that the acceptance does not constitute waiver.

o The agreement should provide that the landlord may terminate the rental agreement and take possession as provided in the Oregon FED laws if the tenant fails to pay the balance of the rent by a time certain.

o The tenant must agree in writing to pay the balance by a date/time certain.

• If the balance is not paid according to this written agreement, the landlord may serve a 72-hour or 144-hour nonpayment of rent notice – but it must be served no earlier than would have been permitted under the rental agreement and the law, had no rent been accepted.

• Notwithstanding a landlord’s acceptance of a partial payment of rent, the tenant continues to owe the landlord the unpaid balance of the rent. In other words, acceptance of partial rent does not eliminate the duty to pay the balance.

By Elliot Njus | The Oregonian/OregonLive

Rent increases will be capped at 9.9% through 2020, the first full year Oregon’s new rent control law will be in effect, state economists announced Wednesday.

The Oregon Legislature this year passed Senate Bill 608, which imposed the nation’s first statewide rent control policy. The law caps rent increases at 7% plus the rate of inflation for the urban West. For 2019, that number came to 10.3%. 

Not all rentals are subject to the policy. The rent cap doesn’t apply to buildings that are less than 15 years old — an attempt to avoid a damper on housing construction — nor to government-subsidized rents. Landlords may raise rent without any cap if tenants leave of their own accord. 

Typical rents across Oregon are rising at a far slower rate than what’s allowed under the cap. 

But lawmakers who supported the policy said it would avert the biggest rent hikes that functioned as de facto evictions. Such increases, in which rents sometimes doubled or more, grabbed headlines in recent years, frequently after apartment buildings were sold to a new owner. 

The new law also requires most landlords to cite a cause, such as failure to pay rent or other lease violation, when evicting renters after the first year of tenancy.

Some “landlord-based” for-cause evictions are allowed, including the landlord moving in or a major renovation. In those cases, landlords are required to provide 90 days’ notice and pay one month’s rent to the tenant, though landlords with four or fewer units would be exempt from the payment.

-- Elliot Njus

We are now into the fifth week of the 2017 Oregon Legislative Session. 

Last week MHCO held a very successful Lobby Day on Wednesday, February 22nd. We have a great turnout - 93 attendees - who met with 76 Legislators. Thank you to everyone who made the effort to attend and visit with their Senator or State Representative. Attendees came from as far as Michigan! Face to face meetings with legislators are still important in the digital age - your efforts make a difference. Thank you to everyone who participated!

Here are some highlights of bills introduced last week or changed status since the last report: 

o HB 2008 - We mentioned this in the last report as LC 2997 It is a lengthy bill changing park sales, establishing an enforcement agency that can investigate landlord actions with up to $10,000 fines. It contains nearly every bad legislative idea that MHCO has fought against for the last 20 years. MHCO STRONGLY OPPOSES 

o HB 2009 - Advances sunset for subtraction for sale of manufactured dwelling park to certain entities. Creates personal income tax credit for sale of park. Provides that calculation of credit for taxes paid to other state allowed to nonresident taxpayer or allowed to estate treated as resident of another state occurs before allowance of credit for sale of park. MHCO is currently has no position - waiting to see what the Legislature wants in return. 

o HB 2990 - Increases time period during which tenants of manufactured dwelling park must identify or form tenants committee for purpose of purchasing park from 10 days to 60 days. Provides tenants committee with 15-day right of first refusal for offer or agreement to purchase park. MHCO Opposes. 

o HB 2165 -Requires building official to inspect small home for compliance with recreational vehicle program standards if home is not intended for use as residence or is not permanently sited. Requires building official to inspect small home intended as residence and permanently sited for compliance with Low-Rise Residential Dwelling Code. MHCO testified against and has been sent back to legislative counsel. 
 

Answer: By way of refresher, ORS 90.630 pertains to curable maintenance/appearance violations relating to residents' spaces. However, if the violation relates to the physical condition of the home's exterior, ORS 90.632 applies, to address repair and/or remediation that can take more time to cure, either due to the weather, the amount or complexity of the work, or availability of qualified workers.

SB 277A, became law on June 14, 2017 ("Effective Date"), applies: (a) To rental agreements for fixed term tenancies - i.e. leases - entered into or renewed on or after the Effective Date; and, (b) To rental agreements for periodic tenancies - i.e. month-to-month tenancies - in effect on or after the Effective Date.

Both ORS 90.632 and the MHCO form (No. 55) provides that if the tenant performs the necessary repairs before the end of the compliance date, or extended compliance date, they have the right to give the landlord/manager a written notice that the issues have been corrected. There is no fixed time for management's response as to whether the repairs have been satisfactorily and timely performed; it is sufficient if it is within a reasonable time following the tenant's written notice. However, if a tenant gives this notice to management at least 14 days prior to the end of the completion deadline, or extended deadline, their failure to promptly respond is a defense to a landlord's termination of tenancy.

I am assuming the tenant gave you no such notice, otherwise, you would have responded that the color was too bright.

MHCO Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. As I said in an article last year on this form, '_you cannot expect the tenant to be a mind reader - just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity."

Is there a technical argument that since the requirement was not in the Form 55 Notice, that it is not effective? In other words, he complied with the Notice, but not the letter. As you said: "He did paint like we asked him, but it was not a color approved by management." I personally think such an argue is specious - assuming that the letter accompanied, or quickly followed the Notice.

But to the question whether you can proceed under the Notice, I don't think I would recommend that, because the Notice was complied with. Assuming you have some rule about pre-approval on painting in your rules, I would issue a 30-day notice.

If you do not have such a rule, you will likely have to tread lightly, as you may not be in a good position to declare a violation upon which to issue a termination notice. In other words, you should try to reach a compromise, which may result in some form of cost sharing. I'm sorry to reach this conclusion, but without the requirement of management approval somewhere (i.e. in the rules or the Form 55 Notice) you may find that it the tenant secures legal counsel, you options are limited.[1]

The cautionary tale here is to make sure that when issuing Form 55 Notice, you not only need to identify what the problem is, but all completely explain what is necessary to cure. Had the pre-approval requirement been set out in the Form, you would have at least had a reasonable argument of non-compliance. I say "reasonable" because there still remains an argument by the tenant that you are imposing a requirement (i.e. management pre-approval), that is not contained in the rules or rental agreement.

[1] There is an argument that the Letter was part of the Form 55 Notice, and therefore the tenant is in violation. However, unless one of them referred to this cross-reference, it is not a pitch I would try to make in court.

Answer: The process for evicting an RV tenant is the same process used for evicting most tenants in any setting. Nearly every eviction begins with an eviction notice, which must be properly served on the RV tenant. "Proper service" under Oregon law means that the eviction notice must be either (1) personally served, (2) mailed by first class mail, or (3) posted and mailed (if allowed by the rental agreement).

I recommend that if the RV tenant has an individual mailbox at the park, eviction notices should be mailed with at least 3 days added for mailing time. If the tenant does not have mail service at the park, or if the mail goes through the park office for RV tenants, then personally serve the notice by putting it in his or her hand. "Posting and mailing" as a method of service should be avoided, since there must be very specific language in the rental agreement allowing such service.

Most notices give the tenant a certain amount of time to remedy a default (i.e., 72 hours to pay past-due rent), followed by a tenancy termination deadline if the default isn't remedied. Other notices can't be remedied (i.e., a 24-hour notice for outrageous conduct) and simply inform the tenant that they must vacate by a certain time and date. RV tenants can also be evicted with a 30-day, no-cause notice if they have been in the park less than a year. Anything over a year requires a 60-day notice to evict without cause.

The one special circumstance for evicting an RV that does not require service of a notice is the so-called "midnight move-in." This occurs when an RV simply drives onto a space in the park without the prior consent of the landlord. When that happens and the RV owner refuses to vacate immediately, the landlord can simply file an eviction case without needing to serve any notice.
In all other cases, after an eviction notice expires and the RV tenant fails to vacate, the landlord will need to file an eviction lawsuit at the local county courthouse. The eviction lawsuit is sometimes referred to as an "FED" ("Forcible Entry and Detainer"). The tenant will be served with an eviction summons and complaint and be required to appear in court.

As the landlord, you will also need to appear in court unless you have an attorney or other agent (such as a property manager) appear in court at the "1st appearance hearing." This hearing is usually set 8 days after the FED is filed. The purpose of the hearing is to see whether the parties can work out a payment plan, move-out agreement, or other arrangement. If not, the case will be set for trial.

If you are unable to settle the case at the first appearance hearing, by law the trial must be scheduled within 15 days from the 1st appearance hearing. Sometimes, the parties or the court will delay the trial beyond this time frame, but most cases move quickly. This leaves little time for preparation, meaning it is important to have your witnesses, exhibits, and trial arguments ready to go.
You do not necessarily need an attorney for court appearances, but you will increase your chance of success if you do. The eviction statutes are very technical, and most people aren't familiar with courtroom procedures. You will especially be at a disadvantage if the RV tenant has an attorney. If your case gets to the point of a trial, it is usually worth it to hire an attorney.

Mark L. Busch, P.C.
Attorney at Law
Cornell West, Suite 200
1500 NW Bethany Blvd.
Beaverton, Oregon 97006

Ph: 503-597-1309
Fax: 503-430-7593
Web: www.marklbusch.com
Email: mark@marklbusch.com

WHY SHOULD YOU CARE SO MUCH ABOUT R&Rs: ASSET VALUE - Firstly, a SIGNIFICANT part of your community's real estate value is based on how well Residents adhere to the R&Rs which YOU as an Owner/Manager must enforce! CASH FLOW - Second, because rule violations, with the exception of non-payment of rent issues, are the number one reason Residents get evicted, we cannot emphasize enough, how important it is to keep your rules up to date, so that you prevail when spending money in the legal process... .got your attention???? Read on:

ORS 90.510 requires that the Rules and Regulations and a copy of your rental agreement be handed out as attachments to the Statement of Policy (SOP) to prospective and existing Tenants. When giving these documents to prospective Tenants, you should have them sign a receipt for Statement of Policy. All too often we have heard Tenants state in court that they never signed or received a copy of the Rules and are therefore not bound by them. By producing a copy of the signed receipt for Statement of Policy, the presumption is that they did receive the rules even if they never read them.

As mentioned above, it's extremely important to keep your rules updated. In MHCs that we've managed, we have discovered rules that are 2 pages and we've seen some that are 30 pages... .some Community Owners have not revised this IMPORTANT governing document since the 1970s! Many of these older and/or shorter sets of rules do not even mention many of the issues relevant today. So if you want to change or update your rules, know that there are two methods to accomplish this.

First is a general rule change that affects all of the Residents: ORS 90.610 sets out the requirements for the notice of proposed change in Rule or Regulations. The statutory time-line for the Residents to OBJECT to the change(s) is 30 days after receiving the written change(s.) If 51% of the eligible spaces object in writing to the proposed change, the new rule(s) do not go into effect. If less than 51% object in writing within the 30 day window, the new rule(s) go into effect for all Residents 60 days after the notice was mailed.

The second method to changing rules is through attrition. There is nothing in the statute that prevents an Owner/Manager from creating a second and more comprehensive set of rules and handing them out with the SOP to new prospective Residents. The new rules will only be enforceable on the new Residents; since all homes change ownership eventually, once you have enough new Residents on the new rules, you can always go for a general rule change effecting everyone. Many or most Residents would already be subject to the new rules, the mathematical probability of having 51% object to the rule is greatly diminished. Remember to keep a copy of whatever generation of R&Rs the Resident agreed to in their resident file. You do not want to try to enforce a new rule on an old Resident who is subject to a previous version of the rules.

Our next article will deal with R&R enforcement, so stay tuned!