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Below is a short summary of the ordinance. It should not be relied upon to the exclusion of consulting legal counsel or reading the ordinance yourself.

Termination of Tenancy in Park-Owned Homes.A Landlord may terminate a Rental Agreement without cause orfor a “qualifying landlord reason”[1]only by delivering a written notice of termination (the “Termination Notice”) to the tenant of:

• Not less than 90 days before the termination date designated in that notice as calculated under the Act; or
• The time period designated in the rental agreement, whichever is longer. 
• Not less than 45 days prior to the termination date provided in the Termination Notice, the landlord shall pay to the tenant, as “Relocation Assistance” a payment as follows: 
  • $2,900 for a studio or single room occupancy (“SRO”) Dwelling unit;
  • $3,300 for a one-bedroom dwelling unit;
  • $4,200 for a two-bedroom dwelling unit; and
  • $4,500 for a three-bedroom or larger dwelling unit. 
• (A landlord that declines to renew or replace an expiring lease or rental agreement is subject to the above provisions. These payments are intended to apply per dwelling unit, not per individual tenant.) 

Rent Increase Limitations For Park-Owned Homes. A landlord may not increase a tenant's rent or “Associated Housing Costs”[2]by 5 percent or more over a rolling 12-month period unless the landlord gives notice in writing to each affected tenant: 

• At least 90 days prior to the effective date of the Rent increase; or 
• The time period designated in the rental agreement, whichever is longer. 

The Increase Notice must specify:

• The amount of the increase;
• The amount of the new rent or Associated Housing Costs; and
• The date when the increase becomes effective.  

If, within 45 calendar days after a tenant receives an Increase Notice indicating a rent increase of 10 percent or more within a rolling 12-month period anda tenant provides written notice to the landlord of the tenant’s request for Relocation Assistance (the “Tenant’s Notice”), then:

• Within 31 calendar days of receiving the Tenant’s Notice, the Landlord shall pay to Relocation Assistance to the tenant in the amount that follows: 
• $2,900 for a studio or SRO Dwelling unit;
• $3,300 for a one-bedroom Dwelling unit;
• $4,200 for a two-bedroom Dwelling unit; and
• $4,500 for a three-bedroom or larger Dwelling unit.  

After the tenant receives the Relocation Assistance from the landlord, the tenant shall have 6 months from the effective date of the rent increase (the “Relocation Period”) to either:

• Pay back the Relocation Assistance and remain in the dwelling unit and shall be obligated to pay the increased Rent in accordance with the Increase Notice for the duration of the tenant’s occupancy; or
• Provide the landlord with a notice to terminate the rental agreement in accordance with ORS Chapter 90 (the Oregon Landlord-Tenant Act).  
• In the event that the tenant has not repaid the Relocation Assistance or provided the landlord with the tenant’s Termination Notice on or before the expiration of the Relocation Period, the tenant shall be in violation of this ordinance. 
• A landlord that conditions the renewal or replacement of an expiring lease or rental agreement on the tenant’s agreement to pay a rent increase of 10 percent or more within a rolling 12-month period is subject to the above provisions.  
• A landlord that declines to renew or replace an expiring lease or rental agreement on substantially the same terms except for the amount of rent or Associated Housing Costs is also subject to the above provisions. 
• (The above requirements are intended to apply per dwelling unit, not per individual tenant, and a tenant may only receive and retain Relocation Assistance once per tenancy per dwelling unit.)

MHCO Form 5E. For all park owners who are renting or leasing park-owned homes to tenants, the Portland ordinance requires that they include a description of a tenant’s rights and obligations and the eligible amount of Relocation Assistance for any of the following events:

• Issuance of a Termination Notice;
• Issuance of a Rent Increase Notice; and
• Payment of Relocation Assistance.

A copy of Form 5E on line at MHCO.ORG. It summarizes the litany or rights and duties imposed by the ordinance and should be delivered to the tenant in any of the above three events.

Exceptions. The Portland Ordinance 30.10.085 provides that Relocation Assistance does not apply to the following:

1.  Rental agreements for week-to-week tenancies;

2.  Tenants that occupy the same dwelling unit as the Landlord;

3.  Tenants that occupy one dwelling unit in a duplex where the landlord’s principal residence is the second Dwelling unit in the same Duplex;

4.  Tenants that occupy an Accessory Dwelling unit that is subject to the Oregon landlord-tenant law in the City of Portland so long as the owner of the Accessory Dwelling unit lives on the site;

5.  A landlord that temporarily rents out the Landlord's principal residence during the landlord's absence of not more than 3 years;

6.  A landlord that temporarily rents out the landlord’s principal residence during the landlord’s absence due to active duty military service;

7.  A dwelling unit where the landlord is terminating the rental agreement in order for an immediate family member to occupy the dwelling unit;

8.  A dwelling unit regulated as affordable housing by a federal, state or local government for a period of at least 60 years;

9.  A dwelling unit that is subject to and in compliance with the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970;

10. A dwelling unit rendered uninhabitable not due to the action or inaction of a landlord or tenant;

11.  A dwelling unit rented for less than 6 months with appropriate verification of the submission of a demolition permit prior to the tenant renting the dwelling unit.

12.  A dwelling unit where the landlord has provided a fixed term tenancy and notified the tenant prior to occupancy, of the landlord’s intent to sell or permanently convert the dwelling unit to another use.

A landlord that fails to comply with any of the above requirements may be liable to the tenant for an amount up to 3 times the monthly rent as well as actual damages, Relocation Assistance, reasonable attorney fees and costs.

An Idle Thought For Park-Owned Homes. Why not sell them to a deserving, but cash-poor tenant? I’ll discuss issues with park owners doing exactly that and carrying back the security documents in a later article.

Once sold, many of these byzantine landlord-tenant ordinances and laws disappear, and the landlord is still protected in the event of the tenant’s default in space rent by using a cross-default provision in the security documents

1. ADVERTISING. Advertising is one of the most common ways landlords find people to place in rental properties. When advertising, landlord clients should describe property attributes and/or amenities, not what they are or are not looking for in a resident. Landlords should not say "great for a young couple" as it may be considered discriminatory to families with children. Nor should landlords say "safe" or "exclusive" as this may imply they only rent to certain groups. At the end of the advertisement, landlords should use either the fair housing logo or a disclaimer such as "This community does not discriminate on the basis of race, color, religion, national origin, sex, disability or familial status." Photographs need to be carefully considered before use in advertising and only after speaking with an attorney.

2. STEERING. "Steering" occurs when a landlord attempts to direct a resident, for whatever reason, to a specific area of the property. To help avoid claims of "steering" by a prospective resident, landlords should show all available properties to prospects, let the prospect decide what to see and what to skip, and finally present only facts about the property and the community, not about other residents or neighbors. Landlords should never say "you would really like this particular apartment because it is nice and quiet with few children around", or "there are lots of other children in the same age group as your own" as both statements may be considered a violation of fair housing law. Failing to show a handicapped person the recreational areas (on the assumption the prospect would not use those facilities) may create potential liability. However, if a prospective resident expressly states they are not interested in seeing a specific area it is okay to skip that area. Even if asked, landlords should never comment on the "types" of persons who live in the community.

3. SCREENING/APPLICATIONS. Fair housing claims arise frequently as a result of the application and screening process. Landlords should have a written rental policy detailing the criteria necessary for approval to live in their property. The rental policy should include occupancy guidelines, availability policy, rental criteria (i.e. employment history/income, credit standards, etc.) with an explanation of what the criteria are, an outline of the application process and that your client adheres to all applicable fair housing laws. Questions included on the application should not ask about physical or mental disabilities, and landlords should limit questions about drug/alcohol use and lawsuits. Asking questions regarding prior evictions, prior money judgments, bankruptcy and why prospective residents are leaving their current landlord are acceptable and may provide important information. Once a written policy is created, the landlord should expect strict adherence and compliance with the written policy. Additionally, landlords need to keep good records of each applicant or inquiry. However, if an applicant requests a deviation from the written policy based on a disability, the landlord should consult you immediately before making a decision.

4. OCCUPANCY STANDARDS. In 1996 Congress enacted a law based upon a 1991 HUD memo stating that a 2-person-per-bedroom occupancy standard was acceptable in most situations. This is by no means a hard and fast rule with regard to the number of occupants for a particular residence. This figure can change depending on how the property is laid out. More occupants may be allowed if there are unusually large living spaces or bedrooms, and fewer occupants if the opposite holds true. Many fair housing experts believe that infants do not count when calculating occupancy standards.

5. APARTMENT RULES. It is absolutely acceptable for a landlord to have a set of "house rules" for all residents to live by. The house rules should be basic and non-discriminatory. Rules should be written so they are applicable to all residents and not just specific groups of residents. Rules stating "Children shall not roughhouse in the hallway" may be discriminatory. Using general terms such as "Residents or guests" should keep the rule unbiased, fair and applicable to all residents. Rules must be enforced uniformly against all residents and records regarding rule violations need to be kept. The records should include the time/date and manner of the violation, how the landlord became aware of the violation and what actions were taken to enforce the rule. As a special note, pool rules should be carefully scrutinized to insure they do not discriminate against children. A rule saying "no children under 4 in the pool area" is discriminatory, while a rule saying "children under 12 must be supervised by an adult over 18" is likely not discriminatory. As always, landlords should consult you for specific state or local laws on these issues as well.

6. REASONABLE ACCOMODATION. A reasonable accommodation is at the resident's request and when a client voluntarily makes exceptions to their standard rules/policies to accommodate the resident's disability. The requested accommodation must be reasonable and should not present an undue burden on the landlord. If the accommodation is not reasonable or if it would impose an undue hardship on the landlord, the request may be denied. If the request is denied a letter should be sent to the resident explaining the denial, the facts behind the denial, how those facts were discovered and offering to meet with the resident. Landlords should not offer to make an accommodation to a resident but should wait for a resident to request the accommodation. Offering an accommodation before it is requested may subject your client to a claim of discrimination.

7. REASONABLE MODIFICATION. This should not be confused with a reasonable accommodation. Landlords may require a resident to pay for modifications to the property and require that those modifications be removed when the resident vacates the property. If the modification were for something that federal law already requires a landlord to have in place then the landlord would be responsible for the cost of the modifications. Landlords should check with you to determine where financial responsibility for common-area modifications lay, and whether the resident would be responsible for both the installation and removal of the modifications. As with accommodations, the modifications must be reasonable.

8. RECORD KEEPING. Landlords need to keep records on all prospective residents, in addition to current/past residents. Landlords can create a system of guest cards or logs with relevant information (i.e. date/time of visit, properties shown, prospective move-in date, etc.) as well as a log of all calls made by prospective residents, even if the resident never comes to see the property. Records regarding available properties also need to be kept and updated every time there is a change in availability. Additionally, all applications should be retained, even if the applications were rejected or withdrawn. Landlords should contact you regarding how long the records should be saved in order to comply with changing requirements in federal and state law, as well as what types of records to maintain. Being able to produce consistent records showing nondiscriminatory application of written screening criteria in every case can usually successfully defend a Fair Housing claim.

9. EMPLOYEE TRAINING. Landlords need to ensure that there is a written policy to avoid claims for harassment, particularly sexual harassment. Every time a new employee joins the staff there should be a training meeting about fair housing laws and how to comply with them. The meeting should include copies of all memos regarding policies about how to comply with fair housing, what can happen to the landlord for a violation and what will happen to the employee who violates fair housing.

10. EVICTION. Landlords should not be afraid to evict a resident for legitimate reasons because of a fear of a fair housing violation claim. The rules set by the landlord apply to all residents equally. When contemplating an eviction for other than non-payment of rent advise your client to ask themselves the following two questions: (1) Has there been a serious violation of the lease agreement? (2) Do you and have you evicted other residents for the same type of problems or behavior? If the answer to these questions is yes, then an eviction would be warranted under the circumstances. Resident files should contain records of all complaints against the resident and what has been done in response to each of the complaints. HUD has historically looked for five types of documentation when dealing with fair housing claims. Landlords should document and include in resident files the following information: (1) warning letters/eviction notices, (2) written complaints by third parties, (3) written logs kept by management, (4) police records and (5) photographs. Resident file documentation needs to be consistent for all residents. This documentation may prove there was a legitimate reason, unrelated to any fair housing claims, for evicting the resident.

All information contained in this article is consistent with the Fair Housing Act (42 U.S.C.A. 3601 et seq.) Information was also obtained from the Federal Housing and Urban Development website ( http://www.hud.gov).

Kristi Bunge is a partner with the law firm of Springman, Braden, Wilson & Pontius, PC in Denver, Colorado, a firm that handles more than 500 evictions each month. Ms Bunge focuses on representing landlords in eviction and collection matters. Ms Bunge also represents property managers and Associations, advising them on Community Association issues.

Answer: Landlords should become intimately familiar with ORS 90.680, and then make sure their rules and rental agreements conform to what is allowed. Set forth below is a summary of those portions of the statute that address your questions:

• If the prospective purchaser of a manufactured dwelling or floating home desires to leave the dwelling or home on the rented space and become a tenant, the landlord may require the following:
  • That a tenant give not more than 10 days' notice in writing prior to the sale of the dwelling or home on a rented space;
  • That prior to the sale, the prospective purchaser submit to the landlord a complete and accurate written application for occupancy of the dwelling or home as a tenant after the sale is finalized;
  • That a prospective purchaser may not occupy the dwelling or home until after the prospective purchaser is accepted by the landlord as a tenant;
  • That a tenant give notice to any lienholder, prospective purchaser or person licensed to sell dwellings or homes of the requirements of the resale requirements [Emphasis mine - PCQ];
  • If the sale is not by a lienholder, that the prospective purchaser pay in full all rents, fees, deposits or charges owed by the tenant prior to the landlord's acceptance of the prospective purchaser as a tenant [Emphasis mine];
• If the landlord's rules and/or rental agreement requires prospective purchasers to submit an application for occupancy as a tenant, at the time that the landlord gives the prospective purchaser an application the landlord shall also give the prospective purchaser copies of the statement of policy, the rental agreement and the facility rules and regulations, including any conditions imposed on a subsequent sale[1];
• The following conditions apply if a landlord receives an application for tenancy from a prospective purchaser:
  • The landlord shall accept or reject the prospective purchaser's application within seven days following the day the landlord receives a complete and accurate written application[2];
  • An application is not complete until the prospective purchaser pays any required applicant screening charge and provides the landlord with all information and documentation, including any financial data and references, required by the landlord;
• The landlord may not unreasonably reject a prospective purchaser as a tenant. Reasonable cause for rejection includes, but is not limited to:
  • Failure of the prospective purchaser to meet the landlord's conditions for approval;
  • Failure of the prospective purchaser's references to respond to the landlord's timely request for verification within the time allowed for acceptance or rejection;
  • In most cases, the landlord must furnish to the seller and purchaser a written statement of the reasons for any rejection[3];
• The landlord may give the tenant selling the home a notice to repair the home [e.g. for damage or deterioration] under ORS 90.632. The landlord may also give any prospective purchaser a copy of that notice.
  • The landlord may require as a condition of tenancy that a prospective purchaser who desires to leave the dwelling or home on the rented space and become a tenant must comply with the repair notice within the allowed period under ORS 90.632.
  • If the tenancy has been terminated for failure to timely complete the repairs under ORS 90.632, a prospective purchaser does not have a right to leave the dwelling or home on the rented space and become a tenant.

Obviously, the statute was drafted with tenant/purchasers in mind. However, as long as the home remains on the space, the landlord has complete control over the situation. In your case, I suspect the delinquent tenant made no effort to notify the landlord of his planned sale to the dealer. However, that does not prevent him from imposing these requirements on the dealer if he wants to put a tenant in the park.

Going forward, it might be advisable for all landlords who have faced this situation before, to prepare a summary of requirements to give dealers when they purchase homes from tenants already sited in the park. They may want to expressly address this in their rules, so tenants cannot say they didn'tknow. The written summary to dealers should clearly state that if a departing tenant owes monies to the landlord, repayment will be required before occupancy of the home will be permitted by a new resident. [A more difficult question that is not addressed by the statute, ORS 90.680, is whether the landlord may prevent the dealer from removing the home without paying the past due sums. I suspect the answer may be "Yes" a landlord may do so, but it would require my examination of the statutory storage or retaining lien rights, which is beyond the scope of this question. - PCQ]

[1] The terms of the statement of policy, rental agreement and rules and regulations need not be the same as those in the selling tenant's statement, rental agreement and rules and regulations.

[2] The landlord and the prospective purchaser may agree to a longer time period beyond seven day for the landlord to evaluate the prospective purchaser's application or to allow the prospective purchaser to address any failure to meet the landlord's screening or admission criteria. If a tenant has not previously given the landlord the required advance 10 days' notice, the period provided for the landlord to accept or reject a complete and accurate written application is extended to 10 days.

[3] If a rejection is based upon a consumer report (as defined in 15 U.S.C. 1681a) for purposes of the federal Fair Credit Reporting Act, the landlord may not disclose the contents of the report to anyone other than the purchaser. In such cases, the landlord is to disclose to the seller in writing that the rejection is based upon information contained in a consumer report and that the landlord may not disclose the information contained in the report.

Answer: This is a very complicated issue on several levels. For example, marijuana is a controlled substance under Federal Law. Under Oregon law, use and cultivation in limited amounts pursuant to a lawful Medical Marijuana Card are legal. The Oregon laws are linked here. The statutes cover such things as grow-site registration; medical uses for marijuana; issuance of an identification card; and limitations on a cardholder's immunity from criminal laws involving marijuana. For those interested, these statutes should be consulted. You have a responsibility to make sure that laws are not being violated in the community. You also have a responsibility to the rest of the other residents. Compliance with all laws is a condition of occupancy under the park's rental agreement, its rules, and the Oregon Residential Landlord-Tenant Act. I know of no way you can honor your obligations except to ask to see the card and verify that it is current and held in the name of the resident. The main issue here is Fair Housing Laws. If the resident has a valid card, then arguably he have some medical condition that has authorized its issuance. Does he have a legal right to demand that under the Fair Housing Laws, you make a "reasonable accommodation" for his medical condition, and permit him to continue in his grow operation? Not necessarily. In January 20, 2011, the U.S. Department of Housing and Urban Development ("HUD") issued a Memorandum, the subject of which was "Medical Use of Marijuana and Reasonable Accommodation in Federal Public and Assisted Housing." While the Memo was limited to federal public and assisted housing, it can be regarded as a helpful - though perhaps not a "final" resource - on the issue. It is very complete and helpful for all park managers and owners. It can be downloaded at: https://www.google.com/search?q=hud%20medical%20marijuana. Here is what the Memo directs: Public housing agencies '_in states that have enacted laws legalizing the use of medical marijuana must therefore establish a standard and adopt written policy regarding whether or not to allow continued occupancy or assistance for residents who are medical marijuana users. The decision of whether or not to allow continued occupancy or assistance to medical marijuana users is the responsibility of PHAs, not of the Department." Thus, HUD seems to be skirting the issue, leaving it up to the agency in the state that permits the use of medical marijuana. Between the lines, it appears that HUD will not enforce a fair housing reasonable accommodation claim against park ownership or management if the community has an anti-marijuana policy in place. Without such a policy, my inclination is that enforcement would be potentially riskier, since the card-holder was not aware of the limitation at the inception of the tenancy. In answer to your specific questions: - Clearly, the card has to be valid and current in Oregon. A California card, for example would not suffice. (See, State v. Berrenger, 2010). - If there is no card, or no current valid card, the growing (not use) of marijuana could be is a violation of state law. You may not be able to issue a 24-hour notice under ORS 90.396, since possession of certain amounts of marijuana pursuant to a valid card, is protected. However, you may consider issuances of a curable 30-day notice under ORS 90.630; - If others are complaining about the odor, you have an issue between enforcing the use and enjoyment provisions of your rules or ORS 90.740(4)(i) versus permitting the activity if the resident has a lawfully issued Oregon card and is not growing over the proscribed amount. In any event, I would recommend that your community institute a medical marijuana use policy as a part of your rules and regulations. See, ORS 90.610 for the law regarding rule changes. Note that the right to implement a rule change - even if it results and a material change to the tenant's bargain with the park - is expressly permitted. In other words, you may want to proscribe ALL such activity, even if it pre-existed the new rule. Alternatively, you could grandfather in current card-holders.

Answer.   The land is owned by the landlord, not the tenant. While the landlord has certain responsibilities regarding the ground,[1] most of these duties apply at the time in installation of the home.

However, ORS 90.730(3)(g) provides:

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

In this case, I don’t believe the landlord has a duty to backfill the eroded area costing thousands of dollars, but certainly should want to get the tenant relocated as soon as possible. If the home is not habitable due to the dangerous condition of the ground, I believe the tenant should be relocated immediately. If there is danger to the home and tenant, he/she should vacate, and resume occupancy only after the home has been relocated.  In the meantime, I would not recommend accepting rent for a space that is dangerous or not habitable.

If the home is damaged, that is the tenant’s responsibility to repair – hopefully he/she has casualty insurance.

In terms of timing, much depends on the severity of the erosion. As for the cost of the move, that is a good question. The statutes don’t address. I believe it could be covered by the tenant’s insurance company, if there is insurance.  If not, and the tenant cannot afford the move, something has to happen. The landlord’s insurance company may provide coverage, since it was a storm-caused event and affected the park’s property. For example, if the storm cause a tree limb to fall on a tenant’s home, the park’s carrier would likely have to pay. It is not much different with water damage endangering part of the park occupied by tenants. Both water and trees causing storm damage are Acts of God, and this is exactly what liability insurance is for. 

If there is no insurance coverage, I would suggest the cost be borne 50-50 between landlord and tenant, since both need the problem to be resolved, and the current statutes do not provide a clear answer. I suppose if the tenant refused – arguing that the space was created by the landlord, and must assume the risk of erosion along the waterfront – it might end up that the landlord should pay, just to avoid litigation.

If the tenant abandons the home, the landlord would proceed under ORS 90.675. However, absent a written letter from the tenant that they are abandoning the home, I always recommend that it be preceded by a 72-hour notice, because then the 45-day letter can be sent 7 days following entry of an order of restitution, and the landlord does not have to make any assumptions about the tenant’s state of mind.

One note of caution: Before issuing a 72-hour notice in this case, the landlord must relocate the home, since it would be risky to demand payment just because the tenant left a dangerous home.

[1]   90.730 Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition. (1) As used in this section, “facility common areas” means all areas under control of the landlord and held out for the general use of tenants.

      (2) A landlord who rents a space for a manufactured dwelling or floating home shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. The landlord does not have a duty to maintain a dwelling or home. A landlord’s habitability duty under this section includes only the matters described in subsections (3) to (6) of this section.

      (3) For purposes of this section, a rented space is considered unhabitable if it substantially lacks:

      (a) A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord;

      (b) If required by applicable law, a drainage system reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;

      (c) A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord;

      (d) An electrical supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord;

      (e) A natural gas or propane gas supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the gas supply system can be controlled by the landlord, if the utility service is provided within the facility pursuant to the rental agreement;

      (f) At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

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

      (h) Completion of any landlord-provided space improvements, including but not limited to installation of carports, garages, driveways and sidewalks, approved under applicable law at the time of installation.

      (4) A rented space is considered unhabitable if the landlord does not maintain a hazard tree as required by ORS 90.727.

      (5) A vacant space in a facility is considered unhabitable if the space substantially lacks safety from the hazards of fire or injury.

      (6) A facility common area is considered unhabitable if it substantially lacks:

      (a) Buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

      (b) Safety from the hazards of fire;

      (c) Trees, shrubbery and grass maintained in a safe manner;

      (d) If supplied or required to be supplied by the landlord to a common area, a water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord; and

      (e) Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of commencement of the rental agreement and for which the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal.

      (7) The landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:

      (a) The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;

      (b) The agreement does not diminish the obligations of the landlord to other tenants on the premises; and

      (c) The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated. [1999 c.676 §6; 2007 c.906 §40; 2011 c.503 §10; 2013 c.443 §2; 2015 c.217 §7]

Question 2

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 2

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 3

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 nothave 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 3

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 – notthe 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 90.403then permits you to give a 24-hour non-curable termination notice to the “squatter”  and evict, if necessary, through the normal FED process.

Answer 1:  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 2: 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 2:  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 3:  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 3:  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:  To clarify, when you refer to the “Moratorium” you are referring to HB 4401 which was signed by the Governor on December 23, 2020. It did two things: 

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

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

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

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

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

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

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

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

The Fair Housing Amendments Act (FHAA) went into effect on March 12, 1989.  That Act amended Title VIII of the Civil Rights Act of 1968, which prohibited discrimination based on race, color, religion, sex or national origin in the sale, rental, or financing of residential housing.  The FHAA added two additional protected classes; (1) persons with disabilities and (2) families with children.  Children include persons under the age of 18 years.

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.

The above article is a discussion of the federal Fair Housing law governing 55+ communities.  The contents are not intended to constitute legal advice, and should not be relied upon by the reader as such.  All legal questions regarding this complicated and important law should be directed to legal counsel familiar with the area.

© Copyright 2006.  Phillip C. Querin.  No portion may be reproduced without the express written consent of the author.

Question: A home was purchased by a local dealer from a resident who had not paid rent for several months. The dealer then sold the home to another person who applied for tenancy and passed the screening criteria. The landlord wants the past due rent ($900) paid before permitting applicant to move into the home. Can the landlord go after the dealer to pay the past due rent? Can the landlord keep the applicant from moving in until the $900 is paid? Should the landlord have given some notice to the existing tenant, the dealer, and/or the prospective tenant, regarding how the unpaid rent should be handled? What about other expenses the tenant who sold the home ran up, such as utilities, late fees, maintenance clean up expenses, etc.? What do you suggest as far as notices to the dealer stating the amount of money owed? The dealer is not the lien holder.

Answer: Landlords should become intimately familiar with ORS 90.680, and then make sure their rules and rental agreements conform to what is allowed. Set forth below is a summary of those portions of the statute that address your questions:

o If the prospective purchaser of a manufactured dwelling or floating home desires to leave the dwelling or home on the rented space and become a tenant, the landlord may require the following:

o That a tenant give not more than 10 days' notice in writing prior to the sale of the dwelling or home on a rented space;

o That prior to the sale, the prospective purchaser submit to the landlord a complete and accurate written application for occupancy of the dwelling or home as a tenant after the sale is finalized;

o That a prospective purchaser may not occupy the dwelling or home until after the prospective purchaser is accepted by the landlord as a tenant;

o That a tenant give notice to any lienholder, prospective purchaser or person licensed to sell dwellings or homes of the requirements of the resale requirements [Emphasis mine - PCQ];

o If the sale is not by a lienholder, that the prospective purchaser pay in full all rents, fees, deposits or charges owed by the tenant prior to the landlord's acceptance of the prospective purchaser as a tenant [Emphasis mine];

o If the landlord's rules and/or rental agreement requires prospective purchasers to submit an application for occupancy as a tenant, at the time that the landlord gives the prospective purchaser an application the landlord shall also give the prospective purchaser copies of the statement of policy, the rental agreement and the facility rules and regulations, including any conditions imposed on a subsequent sale ;

o The following conditions apply if a landlord receives an application for tenancy from a prospective purchaser:

o The landlord shall accept or reject the prospective purchaser's application within seven days following the day the landlord receives a complete and accurate written application ;

o An application is not complete until the prospective purchaser pays any required applicant screening charge and provides the landlord with all information and documentation, including any financial data and references, required by the landlord;

o The landlord may not unreasonably reject a prospective purchaser as a tenant. Reasonable cause for rejection includes, but is not limited to:

o Failure of the prospective purchaser to meet the landlord's conditions for approval;

o Failure of the prospective purchaser's references to respond to the landlord's timely request for verification within the time allowed for acceptance or rejection;

o In most cases, the landlord must furnish to the seller and purchaser a written statement of the reasons for any rejection ;

o The landlord may give the tenant selling the home a notice to repair the home [e.g. for damage or deterioration] under ORS 90.632. The landlord may also give any prospective purchaser a copy of that notice.

o The landlord may require as a condition of tenancy that a prospective purchaser who desires to leave the dwelling or home on the rented space and become a tenant must comply with the repair notice within the allowed period under ORS 90.632.

o If the tenancy has been terminated for failure to timely complete the repairs under ORS 90.632, a prospective purchaser does not have a right to leave the dwelling or home on the rented space and become a tenant.

Obviously, the statute was drafted with tenant/purchasers in mind. However, as long as the home remains on the space, the landlord has complete control over the situation. In your case, I suspect the delinquent tenant made no effort to notify the landlord of his planned sale to the dealer. However, that does not prevent him from imposing these requirements on the dealer if he wants to put a tenant in the park.

Going forward, it might be advisable for all landlords who have faced this situation before, to prepare a summary of requirements to give dealers when they purchase homes from tenants already sited in the park. They may want to expressly address this in their rules, so tenants cannot say they didn't know. The written summary to dealers should clearly state that if a departing tenant owes monies to the landlord, repayment will be required before occupancy of the home will be permitted by a new resident. [A more difficult question that is not addressed by the statute, ORS 90.680, is whether the landlord may prevent the dealer from removing the home without paying the past due sums. I suspect the answer may be Yes" a landlord may do so