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Answer. There is nothing in the Oregon landlord-tenant laws that addresses this subject. This is not like an adult who wants to be approved as a resident and move in to an existing home. In that case, I can see that you would want to run him through the fully battery of checks.

But in this case, what would you learn? You would not be able to get any juvenile records. He probably has no credit to speak of, and his income is not necessary for establishing that his parents can afford to live in the community. It strikes me that going forward, you retain the same control over him as any other adults in the park. He has to obey the rules, etc., and if he doesn'tyou could issue a 30-day notice to the parents about his conduct.

If you wanted to add him as a Temporary Occupant, you could do that. If he violated rules, etc., you could terminate his right to be a Temporary Occupant, and require that he vacate. However, in this case, it does not seem that there is cause for concern.

If he had been a problem child, and now had grown into a problem adult, I would strongly recommend that you use a Temporary Occupancy Agreement. Your options in requiring that he vacate upon breach of the rules, are much swifter, although you cannot terminate without cause.

Although I don't believe I've seen this issue addressed in park rules, it's not a bad idea to have something in place. You could say that all children remaining in the park after their 18th birthday, must do X, Y, and Z. That way, when it happens, you will not be accused of picking on one particular tenant's son or daughter.

Lastly, I've often seen a similar situation, where the child moves away after his or her 18th birthday, and then returns a year or so later. Some landlords treat this as they would any other third party wanting to move into an existing resident's home. While it would be nice if the situation was addressed in the community rules, I have not seen this. I believe I would treat any adult wanting to share space with other residents, even parents, the same way I would treat unrelated parties; they must at least pass a background check. The rule should be the same for two residents who have been approved, then one leaves and comes back a year or so later.

In all cases, you can use the Occupancy Agreement, assuming the person passes their background check. If there is ever any doubt about the boomerang child, or former tenant coming back into the community, your best alternative (other than saying "No" based upon the background check) is to use the Temporary Occupancy Agreement.[1] However, never let the Temporary Occupancy Agreement be perpetual; be sure to have an expiration date on the term. You can always renew it if they behave.

[1] The statute is here. Note that you cannot qualify the Temporary Occupant based upon finances, since it is presumed their income is not necessary for the existing tenant(s) to pay the monthly space rent.

Answer. I believe that what you want to do is possible; you want to verify with your own legal counsel.

But let me suggest that you asked the question in the wrong way. Rather than asking whether the law allows this, you should ask whether the law disallows it. In other words, in most cases, when it comes to landlord-tenant legal rights and duties, Chapter 90 sets a "floor" below which you cannot go.[1] So although the law does not address this specific issue, that does not mean you cannot do institute such a policy, so long as it does not violate other portions of the chapter.

What laws might apply? Here are the ones that come to mind:

90.130 Obligation of good faith. Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement. [Formerly 91.730]

90.135 Unconscionability. (1) If the court, as a matter of law, finds:

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

(b) A settlement in which a party waives or agrees to forgo a claim or right under this chapter or under a rental agreement was unconscionable when made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result.

(2) If unconscionability is put into issue by a party or by the court upon its own motion the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose and effect of the rental agreement or settlement to aid the court in making the determination. [Formerly 91.735]

90.220 Terms and conditions of rental agreement; smoking policy; rent obligation and payment. (1) A landlord and a tenant may include in a rental agreement terms and conditions not prohibited by this chapter or other rule of law including rent, term of the agreement and other provisions governing the rights and obligations of the parties. ****

90.262 Use and occupancy rules and regulations; adoption; enforceability; restrictions. (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. ****

90.510 Statement of policy; rental agreement; rules and regulations; remedies. ***

(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. ****

Conclusion. Note that ORS 90.295 pertains to "applicant" screening charges, etc. The statute is very specific and detailed. However, that is because it is limited to situations where a prospective tenant is seeking entry into the park as a tenant. There is nothing in Chapter 90 dealing with background check for guests who will remain at the park in excess of 14 days. However, if I were to draft a rule to implement your suggested policy, I would likely use it as a general template of issues that should be addressed, since some of them are the same, e.g. denial of the right to remain at the premises because of a failure to pass the background check. Additionally, you would want to make the list of disqualifying criteria known in advance, so tenants and applicants knew whether it would be worth the cost and effort to apply.

Lastly, I suggest that you implement such a rule through a rule change in accordance with ORS 90.610. Good luck!

[1] For example, on nonpayment of rent notices, you would not want to institute a payment period shorter than 72 hours. Similarly, you would not shorten the cure time for a rules violation to less than 30 days. Conversely, if you wanted to lengthen the time to pay late rent or cure a violation, you can certainly do so.

Answer: You must have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical. Generally, communities strive to be over 80%, since falling below 80% occupancy [even upon death of a qualifying 55+ resident] means immediate disqualification. Does this mean that your 15% safety margin must be reserved for families with children? The answer is “No.” In fact, a 55+ community should strive for 100% occupancy by persons age 55 or over. Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age? Again, the answer is “No.” If desired, a 55+ community may impose a minimum age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years. However, it is also important for you to publish and adhere to policies and procedures that demonstrate an intent to operate as a 55+ community. This requirement is fairly self-explanatory; i.e. you should make sure that in all advertising, rules, rental agreements, and policies, you always hold the community out as a 55+ facility. Lastly, you must comply with HUD’s age verification of occupancy procedures to substantiate compliance with the requirement that at least 80% of the community is intended to be occupied by at least one person age 55 or over. The law provides that the following documents are considered reliable for such verification: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.

When you drive through a "pure mobile home park" and then drive through a park with a lot of RV tenants you can feel the difference in overall quality. The overall value of a MHP with "Permanent RV" tenants mixed in with Mobile Home tenants is lower than a MHP which is completely filled with Mobile Homes. RV's are not really permanent homes so MHP buyers and banks see RV occupancy as more risky than Mobile Home occupancy. The appraised value is lower, the interest rate that the bank charges can be higher and the pool of interested buyers is smaller. There are a number of MHPs in Oregon which have RV tenants who have been tenants in the same space for over 15 years, but even if you prove this to a bank, they can still be hesitant to lend on the park. Many buyers will simply not look at MHPs with a high percentage of RV tenants. One advantage of having RV tenants to fill spaces is that you can give them a 60 day no cause notice to move out. This can be beneficial for two reasons. Firstly, if the tenant turns out to be a problem tenant who does not adhere to the rules, it is easy to replace them with a good tenant. This also allows a MHP owner to temporarily fill spaces with RV tenants but replace them with Mobile Homes when they find one to put into that space. Of course, it is always a good idea to inform an RV tenant that this is your intention before they move in and expect to live there for years.

Not only does the park income rise when spaces are full, but the overall feeling of full occupancy is good for tenants, management and once full, parks with 100% full lots tend to stay that way for a very long time. Vacant spaces can make a Mobile Home Park feel old, neglected, and undesirable even if it is well maintained otherwise. Also, we all know that it is expensive to bring even a used Mobile Home into a park. The purchase of the house, moving expenses, set up, and final touch up will generally run at least $17,000 for a single wide and anywhere from $35,000 - $60,000+ for a double wide home. Other items to consider are the sales commissions for the Mobile Home Dealer and it can prove to be difficult to get both a house, and a tenant to both qualify for bank financing. Having the park buy and set up mobile homes can be a risk but may be worth it. There is really no calculation or standard that determines what the reduction in value of a MHP with RV tenants is but it certainly is the case that the demand is lower and lending is more difficult.

By using a good Mobile Home Dealer who can find used mobile homes to fill spaces, arrange them to be moved and set up and then sell them is a win-win situation. There are a number of highly reputable licensed dealers who can seamlessly fill vacant spaces and in the end the cost is usually worth it when you calculate the improvement made to the park. If you are thinking about selling your MHP, and even if you are not expecting to, it makes sense to improve your property for long term value.

On the other hand, simply having RV tenants pull their RV into a space has many short term benefits for both the tenant and the MHP. The screening criteria is still the same so the RV tenants make up a very good pool of possible tenants. All in all a pure MHP is more desirable but RV tenants can be as long term as Mobile Home tenants and with the trend heading in the direction of very small living spaces, RV living may be considered a luxury before long.

Kim Berry, Principal Broker

Rundle CRE - Mobile Home Brokers

5319 SW Westgate Dr. Suite 232

Portland, OR 97221

503-980-3512

CELL: 503-807-2568

FAX: 360-935-3512

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

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

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

1. Be intended and operated for persons age 55 or over.  This intent can be met by such things as (1) The manner in which the community is described to prospective residents; (2) Advertising designed to attract prospective residents; (3) Lease or rental provisions; (4) The written rules and regulations; (5) Consistent application of the rules, regulations and procedures; (6) Actual practices; and (7) Publicly posting statements describing the facility as a 55+ community.   The age verification procedures must be updated every two years.  This means maintaining a complete file on each space, including with the tenant application updated information, circulated every two years, confirming the names and ages of all persons who are currently residing in the home.

2.  Have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical.   Generally, communities strive to be over 80%, since falling below 80% means immediate disqualification.  Does this mean that the 20% margin must be reserved for families with children?  The answer is “No.”  In fact, a 55+ community may to strive for 100% occupancy

by persons age 55 or over.  Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age or older?  Again, the answer is “No.”  If desired, the community may increase the age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years.   Similarly, the community can make the 55+ requirement “more restrictive” e.g. by either saying EVERYONE has to be 55+ or that the minimum age must be OVER 55+.  The only limitation by the federal government is that the age requirement can’t be LESS restrictive, e.g. under 55, or less than 80% occupied. However, it is important for park owners and managers to make sure that all such age/occupancy requirements be properly reflected in the community’s rules and statement of policy – and be consistently applied. 

3. Publish and adhere to policies and procedures that demonstrate an intent to be operated as a 55+ community.This requirement is fairly self-explanatory.  The community must make sure that in all that it does, from its advertising, rules, rental agreements, and all other policies, always hold itself out in writing as a 55+ facility. 

4.            Comply with HUD age verification of occupancy procedures to substantiate compliance with the requirement that 80% of the facility be intended to be occupied by at least one person age 55 or over. The law provides that the following documents are considered reliable for such verification: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older. 

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

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

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

We all know that 80% or more of a community homesites must be occupied by at least one 55+ person, and that documented proof of age must be consistently required to qualify for 55+ status under HOPA. Let's not forget that the requirements also mandate the re-survey.

What do the Regulations say? "...The procedures described in paragraph (b) [routinely determining the occupancy of each unit, including the identification of whether at least one occupant of each unit is 55 years of age or older] ... must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place once every two years ...."

For example, there were objections to the re-survey mandate on the grounds it was too burdensome. HUD stated that owners would not be unduly burdened by the update requirements since the information "will be readily available in the files."

This comment reflects that the survey requirement can be fulfilled by preparation of a summary of names and ages of the homeowners based on existing file information (assuming the files are up to date). One might annotate a rent roll with resident ages and satisfy the requirement. HUD emphasizes that "...the re-survey does not require that all supporting documents be collected again - only that the community confirm that those persons counted as occupying dwellings for purposes of meeting the 80% requirement are, in fact, still in occupancy."

It is also clear that the survey is a "summary" and not required to include underlying documentation (remember the POA must be obtained for approval of tenancy and kept in the resident's file): "[Only the overall survey summary is required to be available for review, not the supporting documentation. The word 'summary' has been added to this section").

Compilation of the "Summary"

In review of the files to compile the required "summary," it is possible that some files may be missing POA (Proof of Age) documentation. Missing POA reflects inconsistent conformance to a required age verification policy. This can be fatal to defending a "55+" status. Yet, there are plausible reasons why POA may be absent. Perhaps a resident's tenancy commenced before the date of enactment of the Fair Housing Amendments Act of 1988 (September 12, 1988): this was the last date to "grandfather" underage residents excluded from the calculation of the 80-20 requirement; perhaps the Xerox copier did not work on the day identification was checked; perhaps the applicant's age was so obvious that documentation was overlooked; perhaps the POA was misplaced. None of these explanations will "wash" with fair housing enforcers. Now is the time for review of this information. Supplementing resident files may bolster a defense of the "55+" status by proving the 80-20 ratio, but cannot substitute for consistent conformance to a policy of seeking POA documentation. HUD's requirements are crystal clear: "The housing facility or community must establish and maintain appropriate policies to require that occupants comply with the age verification procedures required by this section."

Should you seek missing POA information?

Yes. In a large scale review of resident files by fair housing enforcers, the main objective for review of proof of age may be to establish the 80-20 ratio: Proof of age in the file may itself be seen as evidence of adherence to collection of required data: even after-acquired information reflects, at least, compliance with the 2-year survey requirement. Proof of age includes

the following: driver's license (an expired or out-of-state license seems 'ok'), birth certificate, passport, immigration card, military identification, any other state, local, national, or international official documents containing a birth date of "comparable reliability." This may include birth certificates, baptismal or marriage documents, perhaps, and other public records.

What if the tenant refuses to provide proof of age?

New purchaser: Of course, refusal to supply proof of age when applying for tenancy is a basis for denying a tenancy application. The regulations also allow for a declaration from a member of the household over 18 years of age, stating that at least one person in the homesite is at least 55 years of age. This after-acquired information is permissible for the survey, but again does not bolster evidence of conformance to proof of age documentation required for tenancy approval.

HUD provides a skeletal sample of certification. This can also be used as part of the tenancy application alone or better yet as a backup to production of proof of age. The sample reads as follows: "I, (name), am 18 years of age or older and a member of the household that resides at (housing facility or community), (unit number or designation). I hereby certify that I have personal knowledge of the ages of the occupants of this household and that at least one occupant is 55 years of age or older." Actual proof of age should be obtained at the application stage to avoid false reporting - no defense to a failure to achieve the 80-20 ration.

The regs also allow for other proof of age if an existing resident refuses to provide it. HUD states that "[I]f the occupants ... refuse to comply with the age verification procedures, the [management] may, if it has sufficient evidence, consider the unit to be occupied by at least one person 55 years of age or older. Such evidence may include: (1) Government records or documents, such as a local household census; (2) Prior forms or applications; or (3) A statement from an individual who has personal knowledge of the age of the occupants. The individual's statement must set forth the basis for such knowledge and be signed under the penalty of perjury."

Thus, the survey could be supplemented by including a sworn declaration or affidavit by any person with personal knowledge of the age of the resident's age. In past cases where proof of age was critically important, private investigation of public records to obtain that information has been conducted to provide such knowledge. Remember however, that obtaining proof of age "after the fact" shows compliance with the 2-year survey requirement, but does not substitute for a consistent practice of securing the required information at the time of processing the tenancy application.

HUD gives the following example as acceptable: "the owner of a mobile home park where the residents own the coach but rent the land requires a statement of whether at least one occupant is 55 years of age or older before any sublease or new rental." In other words, the qualification procedure can be instituted within the application process itself. HUD states such an example ("All new leases, new purchase agreements, or new applications contain a provision directly above the signatory line for leases, asserting that at least one occupant or the swelling will be 55 years of age or older. In addition the community surveys all current residents for their occupancy status in compliance with the 55 - or-older requirements"). Actual proof of age should always be required with submission of the tenancy application as well.

Conclusion

The continuing survey requirement is mandatory. Whether failure to comply will be fatal to the assertion of "older persons" status is unknown, but this survey requirement is part of the "intent" prong of operating an "older persons" community. In sum, it is time to compile the summary for your park.

(Reprinted with permission from MHI)

Do you operate a 55 & Older Community?

Do you have the necessary MHCO Forms for 55 & Older Communities?

MHCO has the Resources You Need!

If you are one of the many members of MHCO who own and operate a 55 & Older manufactured home community - MHCO has the resources you need to keep that community compliant with current HUD rules.

• Addendum to the Rent/Lease Agreement for Age 55 & Older Communities (MHCO Form 71A)
• 55 & Older Community - Occupation Determination and Age Verification (MHCO Form 71B)
• 55 & Older Community HUD Verification of Occupancy Survey (MHCO Form 71C)

These are excellent tools to use in the effective management of your 55 & Older community. Get the most out of your MHCO membership by purchasing and using MHCO Forms. 

1. Manufactured Home Set-Up

1. Include provisions limiting owner's responsibility for such conditions as soils, site preparation, foundation stability, final grading, and settling.
2. Include provision that homeowner has examined the home site and accepts the condition, "as-is."

1. Manufactured Home Removal

Include a provision notifying resident that they will be held liable for any damage to the home site or manufactured community in the event there is any damage during removal of the home.

1. Manufactured Home Standards

Include provisions addressing the following items pertaining to the manufactured home itself:

1. Description of the home and all other structures and accessories that will be sited on the home site.
2. Age, make and model of home.
3. Installation of skirting, gutters and downspouts (within prescribed period of time).
4. Awnings, decks and patios (within prescribed period of time).
5. Above ground piping.
6. Landscaping (Within prescribed period of time).
7. Will fences be allowed, and if so, what height, material and color? Who's responsibility will it be to maintain?

1. Maintenance of Home and Home Site.

1. Add provision making resident responsible for maintaining and keeping the exterior of the home clean and in good repair. Require painting or staining of all wooden structures such as decks, hand railings, storage buildings etc. to prevent their visual and/or physical deterioration.
2. Make resident responsible for maintaining all lawn areas, flowers and shrubbery within their space (e.g. regular mowing and weeding of lawns).

1. Can/should owner reserve the right to perform or have performed landscape maintenance which resident fails to perform?

1. Who owns the landscaping improvements upon termination of tenancy? Address exceptions. Have in writing.
2. Storage of personal property (e.g. firewood, toys, tools, patio furniture, garbage cans, etc.)
3. Clothes lines or clothes line poles.
4. Play equipment, its location and visibility.

1. Homeowners and Guests

1. Limit amount of rent to the persons identified in the rental agreement. Require that any additional residents must be approved by the owner prior to move-in, and an additional monthly amount paid as rent.
2. Limit the total number of permanent residents in any home (rule of thumb 2 persons/bedroom plus one).
3. Make resident responsible for the actions of other occupants of the home, its guests, licensees and invitees.
4. Will there be a limitation on conducting business out of the home?
5. Limitations on "obnoxious or offensive activities which owner believes are an annoyance or nuisance to the community."
6. How long may guests remain in community? Consider placing limit (e'g' 14 days consecutively or cumulatively) after which time they must be qualified as a resident.
7. Have prohibitions against unreasonably loud or disturbing noise through parties, radios, televisions, stereo equipment, etc. and include a time. (e.g. 10:00 p.m. until 8:00 a.m.

1. Subletting

1. Will subletting of a home be permitted or must they be owner occupied?
2. Require approval of house sitters for any extended period of time (e.g. in excess of 30 days) prior to occupancy.

1. Sale of Manufactured Home

1. Require that prospective resident-purchasers submit an application for residency and be approved by owner prior to occupancy. See ORS 90.680.
2. Size and location of "For Sale" signs.

1. Utilities

1. How are electrical, garbage, sewer and water services going to be paid?

1. ORS 90.510 permits direct pass through, but only if the rental agreement specifically provides the right to do so.
2. Problem: How do you "convert" from including utilities in base rent to direct pass-throughs?
3. Who pays for T.V. cable service? Can owner contract with provider, and add on an extra charge?

1. Pets

1. Place limits on control, sanitation, number, type and size of pets. Note ORS 90.530
2. May require that pet agreement be signed and proof of liability insurance making landlord co-insured.

1. Common Areas

1. Limit use and address owner's liability (e.g. streets shall not be used as playgrounds by resident or guests. Sidewalks are not meant for use by bicycles, skateboards, tricycles, etc.)
2. Require resident to assume liability for their guests and invitees.
3. If there are recreation facilities, describe them and place limitations on their use.

1. If there is a clubhouse, describe how it may be used. Consider requiring pre-registration for use; strictly limit or prohibit the use of alcohol; limit use of guests without resident present.
2. Note: can require reasonable cleaning deposit; cannot require bond or insurance; cannot prohibit tenant association meetings there.

1. Automobiles and Motorized Vehicles

1. Strictly limit the dumping of motor oils and other caustic or non-biodegradable substance in street drains, sewer systems or the grounds within the community.
2. Place limitations on car repair and storage of inoperable cars.
3. Limit the number of vehicles and location of parking. Be careful about towing violators.
4. Place limits on the parking of commercial vehicles in the community.
5. Limit overnight parking on streets by guests or homeowners
6. Limit speed and vehicle noise within the community.
7. Limit storage of motor homes, campers, trailers, boats, snowmobiles, etc. on residents' space.
8. Limit use of motorcycles and ATV's within the community.

1. Occupancy Guidelines (ORS 90.510(7))

1. Statute provides that "if adopted, an occupancy guideline in a facility shall be based upon reasonable factors and shall not be more restrictive than limiting occupancy to two people per bedroom.
2. Reasonable factors are defined to include (but not necessarily be limited to):

1. The size of the dwelling.
2. The size of the rented space.
3. Any discriminatory impact for reasons identified.
4. Limitation placed on water or sewage disposal.

1. Dispute resolution (ORS 90.610)

1. What is dispute resolution?

It is an alternative to court litigation and most frequently includes mediation and arbitration.

1. Mediation - non binding dispute resolution
2. Arbitration - binding dispute resolution
3. ORS 90.610(1) states that resident and owner '_shall provide for a process establishing informal dispute resolution of disputes that may arise concerning the rental agreement for a manufactured dwelling."
4. Parties to dispute resolution - Resident vs. owner disputes (not resident vs. resident disputes).
5. Types of disputes:

1. Should be limited to rules violations (as opposed to rental agreement issues such as rent).
2. Exceptions:

1. Statutory (Facility closure, facility sale, rent including but not limited to amount, increase and nonpayment) ORS 90.610(7).
2. Charges and fees due under the rental agreement.
3. Matters for which a non-curable notice could be issued (e.g. 24-hour notice; 3-strikes notice; 20-day repeat violation notice).
4. Approval of new residents purchasing home in park.
5. Lease renewal.

1. Query: What about claims (generally arising against the landlord) such as tort claims (e.g. personal injury, trespass, fraud, misrepresentation, Unlawful Trade Practice claims, Fair Housing claims, etc.)? Any such clause must be in writing and signed.

1. Miscellaneous

1. Address the services and facilities you do not provide.

1. For example, security patrol or security systems - encourage residents to exercise reasonable diligence and caution in securing their homes. Ask that if they observe any suspicious or illegal acts to notify the manager and/or the police department.
2. If there are dimly lighted and/or dark areas within the community, say so, and ask that the resident agree to carry a portable light source when walking at night.

1. Include a non discrimination provision.

1. For example, a recital that the owner will not discriminate on the basis of race, color, sex, marital status, familial status, religion, national origin, or handicap, etc.

Answer: Not in my opinion. The temporary occupant agreement concept is that the person is not going to be a “co-renter”. They are being permitted to come onto the space as an accommodation by the landlord to the current resident who wants them there. If they are to become a temporary occupant, but your background check inadvertently reveals derogatory references related to financial information, and that concerns you, then limit the amount of time they can remain there, and take things a month, or six months, at a time. You might consider having tenants fill out a form in advance explaining exactly why they want the temporary occupant there. If a tenant wants them there to share the rental obligation then you should know that before offering the temporary occupant status. If that is the case, then have them apply as a tenant. If they don’t pass the financial background check, then reject them on that basis.

Question: The temporary occupancy agreement states that the temporary occupant must comply with the laws/Rules Regulations & Policies of the community. Who is responsible to provide this information to the temporary occupant and when should it be given?

Answer: I understand that the temporary occupant law does not specifically address this point. But you have the most to lose if the rules are not given to them at the outset of the temporary occupant relationship. That being the case, I would suggest you append the rules to the temporary occupant agreement, and have them sign both the agreement and the attached rules. Then there is no question about whether they got them.

Question: The temporary occupant agreement and the law state that a temporary occupant can be terminated “for cause” if there is a material violation of the occupancy agreement and that the temporary occupant does not have a right to cure the violation. The other option is termination by automatic expiration of the agreement (if the box is checked that specifies this). If the landlord needs to issue a for cause termination (instead of termination by automatic expiration) the termination must be done in accordance with the law outlined in ORS 90.392 (for non-MHP tenancies) or 90.630 (for MHP tenancies). However after reading these statutes, they do not give an option for the landlord to issue a for cause notice with no right to cure. How is a landlord supposed to issue a for cause termination notice with no right to cure and have it held up in court? If a landlord issues a for cause notice with no right to cure, what form should be used and what is the time frame for the termination?

Answer: The temporary occupant law is addressed in ORS 90.275. You may terminate the temporary occupant for a material violation of the temporary occupancy agreement. That agreement also terminates by its own terms when it expires (if you checked that box on the form). The law says that upon termination or expiration, the temporary occupant shall “promptly vacate.” If they don’t, then the landlord can issue a for cause termination under 90.630 (for MHP tenancies) to the tenant – not the temporary occupant. That means you would issue a termination notice under 90.630 for the tenant to vacate if the temporary occupant failed to do so as required. The opportunity to cure is for the tenant to get the temporary occupant to vacate. If they temporary occupant fails to vacate within the 30-day cure period given by law to the tenant, then the entire space tenancy is terminated. In such case, the law says the temporary occupant – if they remain – is treated as a “squatter.” ORS 90.403 then permits you to give a 24-hour non-curable termination notice to the “squatter” and evict, if necessary, through the normal FED process.

Answer:  The initial answer is that you are not “required” to open the park facilities that you have kept closed. You do have some discretion on when and how to open certain non-essential park facilities.

The park does have an obligation to provide essential services like restrooms and showers if those facilities are part of what the park regularly provides to tenants.  Presumably you have already been following the state guidelines for sanitation of those facilities.  Under the state guidelines, facilities such as restrooms and showers should be thoroughly cleaned at least twice daily and, to the extent possible, provided with things like soap, toilet paper and hand sanitizer throughout the day.

For both essential and non-essential services, it is important to follow the state guidelines published by the Oregon Health Authority.  You should go to their website for guidance on all COVID-19 issues at https://govstatus.egov.com/OR-OHA-COVID-19. The website provides general guidelines, as well as more specific guidelines for Phase 1 and Phase 2 reopening, including easy-to-print signs to post in your park regarding occupancy limits, social distancing, hand-washing, and COVID-19 symptom recognition.

With regard to reopening a swimming pool, there are very specific guidelines to follow, which include social distancing around the pool, sanitation requirements, occupancy limits, and clear signage for all of the above.  The specific Phase 2 guidelines can be found here:  https://sharedsystems.dhsoha.state.or.us/DHSForms/Served/le2351C.pdf.

In Phase 2, playgrounds should remain closed, and indoor rec centers should only be reopened if physical distancing can be ensured, occupancy is limited, and regular cleaning can take place, among other requirements:  https://sharedsystems.dhsoha.state.or.us/DHSForms/Served/le2351A.pdf.

Ultimately, you should use your best judgment on when to reopen park facilities based on the guidelines and the park’s ability to comply with the guidelines.  Your decision should also take into consideration the park’s obligation to provide park facilities to tenants under your rental agreement.  While the COVID-19 emergency provides a legal justification to temporarily suspend access to those facilities, to avoid pushback from tenants you should consider reopening the facilities when it is safe and feasible under the guidelines. 

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

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

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

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

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

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

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

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

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

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

90.525 [Unreasonable conditions of rental or occupancy prohibited.]

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

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

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

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