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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]

Fair housing law generally prohibits discrimination based on familial status, but there’s a limited exception that applies to senior housing communities that qualify as “housing for older persons.” To qualify, senior housing communities must meet strict technical requirements. Unless they satisfy those requirements, communities may not enforce “adult only” policies or impose age restrictions to keep children from living there.

The focus of this article is on federal law, but it’s important to check the law in your state governing senior housing communities. The specifics may vary, but you could draw unwanted attention from state enforcement agencies if you exclude families with children without satisfying legal requirements to qualify for the senior housing exemption.

Example: In January 2019, the California Department of Fair Employment and Housing (DFEH) announced a $10,000 settlement in a fair housing complaint alleging familial status discrimination against the owners of a six-unit rental community and a residential real estate brokerage firm that managed the property.

Fair housing advocates filed the complaint, alleging that the property was advertised online as an “adult complex” and included a restriction of “maximum 2 adults.” During a follow-up call, the property manager reportedly told a tester that children weren’t allowed. DFEH found that the complex wasn’t a senior citizen housing development and that there was cause to believe a violation of state fair housing law had occurred.

“In California, senior housing developments can, with some exceptions, exclude residents under 55 years of age if they have at least 35 units and meet other requirements,” DFEH Director Kevin Kish said in a statement. “All other rental properties violate the law if they categorically exclude families with minor children. By identifying such policies through testing, fair housing organizations such as Project Sentinel play an important role in ensuring that families with children have access to housing.” 

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans housing discrimination based on race, color, religion, sex, national origin, familial status, or disability—what’s known as “protected classes.”

Congress added familial status to the list of federally protected classes when it amended the FHA in 1988. In a nutshell, the familial status provisions make it unlawful to discriminate against applicants or residents because they have, or expect to have, a child under 18 in the household. Specifically, the FHA’s ban on discrimination based on familial status apply to one or more children under 18 living with:

• A parent;
• An individual with legal custody; or
• An individual who has the written permission of the parent or custodian.

The familial status provisions also apply to pregnant woman and anyone in the process of securing legal custody of one or more children under 18.

Nevertheless, Congress recognized the need to preserve housing specifically designed to meet the needs of senior citizens. Consequently, the 1988 amendment created an exemption from the FHA’s familial status requirements for communities that qualified as “housing for older persons.” Congress later amended the law in the Housing for Older Persons Act of 1995 (HOPA), resulting in the current version of the federal exemption for senior housing.

The exemption allows senior housing communities that meet specific requirements to legally exclude families with children. The exemption applies to housing communities or facilities, which are governed by a common set of rules, regulations, or restrictions. A portion of a single building isn’t considered a housing facility or community, according to HUD. The senior housing exemption applies only to the FHA’s familial status provisions; communities must still abide by the law’s protections based on race, color, national origin, religion, sex, and disability.

The law describes three types of communities that are eligible for the senior housing exemption:

• Publicly funded senior housing communities: Housing communities where HUD has determined that the dwelling is specifically designed for and occupied by elderly persons under a federal, state, or local government program;
• 62-and-older communities: Communities intended for, and occupied solely by, persons who are 62 or older; and
• 55-and-older communities: Communities that house at least one person who is 55 or older in at least 80 percent of the occupied units and adheres to a policy that demonstrates intent to house persons who are 55 or older.

7 RULES TO FOLLOW TO AVOID FAIR HOUSING TROUBLE

IN SENIOR HOUSING COMMUNITIES

Rule #1: Comply with Technical Requirements for Senior Housing Exemption

Senior communities must adopt policies and procedures to ensure strict compliance with the technical requirements of the senior housing exemption. If you don’t comply with the law’s requirements, then you lose the exemption, which in essence makes your community automatically liable for excluding or discriminating against families with children. 

Complying with the law governing the 62-and-older exemption is relatively straightforward. To qualify, the community must be intended for and occupied solely by persons aged 62 and older. For example, HUD regulations explain that a 62-and-older community would have to refuse the application of a 62-year-old man whose wife is 59. In the same vein, a community would lose its exemption if it allowed continued residency by a current resident who married someone under the age of 62.

Complying with the law governing the 55-and-older exemption is more complicated. To qualify, the community must satisfy each of the following requirements:

• At least 80 percent of the occupied units must have at least one occupant who is 55 years of age or older;
• The community must publish and adhere to policies and procedures that demonstrate the intent to operate as “55 or older” housing; and
• The community must comply with HUD’s regulatory requirements for age verification of residents.

1. 80 percent rule. To meet this requirement, a community must ensure that at least one person 55 or older lives in 80 percent of its occupied units. The law doesn’t restrict the ages of the other occupants in those units. Furthermore, there are no age limits for the occupants of the other 20 percent, so communities may accept families with children, although they don’t have to do so.

The 80 percent rule applies to the percentage of “occupied units,” which includes temporarily vacant units if the primary occupant has resided in the unit during the past year and intends to return on a periodic basis. That means that a unit would count toward the 80 percent requirement if its 55-year-old occupant resided in the unit for only part of each year.

To maintain eligibility for the exemption, it’s a good idea to ensure that more than 80 percent of your occupied units are occupied by at least one person aged 55 or older. If you skate too close to the line, your community could be forced into a difficult situation—for example, if a 60-year-old resident dies, leaving a 54-year-old surviving spouse.

To prevent just such a problem, HUD advises communities to plan with care when renting the 20 percent portion of the remaining units to incoming households under age 55. Such planning should address notice to incoming households under the age of 55 regarding how the community will proceed in the event that the 80 percent requirement is threatened.

2. Intent to operate as senior housing. A community must publish and adhere to policies and procedures that demonstrate its intent to operate as housing for persons 55 years of age or older. HUD offers some examples of the types of policies and procedures to satisfy this requirement, including:

• The written rules, regulations, lease provisions, or other restrictions;
• The actual practices of the community used to enforce the rules;
• The kind of advertising used to attract prospective residents to the community as well as the manner in which the community is described to prospective residents; and
• The community’s age-verification procedures and its ability to produce, in response to a familial status complaint, verification of required occupancy.

3. Verification of occupancy. To qualify under the 55-and-older exemption, communities must able to produce verification of compliance with the 80 percent rule through reliable surveys and affidavits.

HUD regulations require communities to develop procedures to routinely determine the occupancy of each unit, including the identification of whether at least one occupant is 55 or older. The procedures may be part of the normal leasing arrangement. And, every two years, communities must update, through surveys or other means, the initial information to verify that the unit is occupied by at least one resident age 55 or older.

In addition, communities must establish procedures to verify the age of the occupants in units occupied by persons 55 and older through reliable documentation, such as birth certificates, driver’s licenses, passports, immigration cards, military identification, and other official documents that show a birth date. HUD regulations also allow a certification signed by any member of the household aged 18 or older asserting that at least one person in the unit is 55 or older.

Rule #2: Market Your Community as Senior Housing

For 55+ communities, it’s essential to ensure that your advertising and marketing doesn’t undercut your ability to qualify for the senior housing exemption.

To qualify for the senior exemption, the law requires communities to demonstrate an intent to provide housing for older persons. The manner in which your community is described to potential residents is among the relevant factors listed in HUD regulations to determine whether a community has complied with the intent requirement. Using the wrong words to describe yourself not only may trigger a fair housing complaint, but also undercut your ability to demonstrate your intent to operate as “55 or older” housing.

As an example, fair housing expert Doug Chasick points to the increasing number of housing developments that market themselves as “Active Adult” or “Empty Nester” communities. Yet, he points out, using the term “Adult Only” housing was outlawed back in 1988, when President Reagan signed amendments to the FHA into law. He says that some state and local enforcement agencies claim that using these phrases are always illegal because they’re incompatible with the intent requirement.

HUD doesn’t take it that far. It’s true that HUD regulations state that “Phrases such as “adult living,” “adult community,” or similar statements in any written advertisement or prospectus are not consistent with the intent that the housing facility or community intends to operate as housing for persons 55 years of age or older. But HUD says that the use of these terms does not, by itself, destroy the community’s ability to meet the intent requirement, according to HUD. If a facility or community has clearly shown in other ways that it intends to operate as housing for older persons, meets the 80 percent requirement, and has in place age verification procedures, then HUD says that the intent requirement can be met even if the term “adult” is occasionally used to describe it.

That’s not to say that Chasick says it’s a good idea to use those terms in your advertising or marketing materials. In fact, he recommends against it unless you want to be caught up in an expensive investigation or enforcement action. Instead, Chasick recommends using words like “senior housing,” “senior living community,” “a 55 and older community,” or even a “55 and Better Community” when describing your community to demonstrate your intent to operate as housing for older persons.

Rule #3: Don’t Discriminate Based on Race or Other Protected Characteristics

The FHA’s senior housing exemption is limited: It offers protection from federal fair housing claims based upon familial status as long as your community meets the FHA’s requirements to qualify as housing for older persons. It doesn’t exempt senior housing communities from any claims based on race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.

That means that senior communities must take steps not only to qualify under the senior housing exemption, but also to ensure they don’t exclude or otherwise discriminate against applicants or residents based on race or other protected characteristic. For example, senior communities must adopt nondiscriminatory policies and procedures governing the application process and treatment of residents in addition to complying with the age-verification and other requirements to qualify for the senior housing exemption. And train your staff to apply those policies consistently to all applicants and residents, regardless of race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.

Rule #4: Enforce Rules to Prevent Harassment by or Against Residents

Take steps to enforce rules to prevent harassment or other misconduct by or against residents. If a resident complains about being harassed by other residents based on her race, sex, or any other protected class, then you should take the complaints seriously.

You shouldn’t be expected to police the behavior of your residents, but you should make it clear that bullying or any other forms of harassment based on protected characteristics won’t be tolerated. Depending on the circumstances, you could face liability under fair housing law if you knew that a resident was subjected to severe and persistent abuse from other residents, but you did nothing to stop it.

Example: In August 2018, a federal court reinstated a fair housing case against an Illinois retirement community for harassment and retaliation. The complaint alleged that the resident endured months of physical and verbal abuse by other residents because of her sexual orientation, and that despite her complaints, the community did nothing to stop it and in fact, retaliated against her because of her complaints.

Fair housing law prohibits discriminatory harassment that creates a hostile housing environment. To prove the claim, the resident had to prove that: (1) she endured unwelcome harassment based on a protected characteristic; (2) the harassment was severe or pervasive enough to interfere with her tenancy; and (3) there was reason to hold the community responsible.

The resident’s complaint satisfied the first and second requirements. She alleged that she was subjected to unwelcome harassment based on her sex, and the community agreed that the court’s earlier ruling—that employment discrimination based on sexual orientation qualifies as discrimination based on sex—applied equally to housing discrimination claims. And the alleged harassment could be viewed as both severe and pervasive—for 15 months, she was bombarded with threats, slurs, derisive comments about her families, physical violence, and spit.

The complaint also satisfied the third requirement. When the case goes back for further proceedings, the focus will be on the management defendants to determine whether they had actual knowledge of the severe harassment that the resident was enduring and whether they were deliberately indifferent to it. If so, then they subjected the resident to conduct that the FHA forbids [Wetzel v. Glen St. Andrew Living Community, August 2018].

Rule #5: Watch for Potential Disability Discrimination Claims

Senior housing communities must pay particular attention to fair housing protections for individuals with disabilities. The FHA prohibits communities from excluding individuals with disabilities or discriminating against them in the terms, conditions, and privileges of the tenancy.

Example: In December 2018, the owners and operators of a California senior housing complex agreed to pay $2,500 to resolve claims that they violated state fair housing laws by denying housing to a prospective resident because she has a disability.

In her complaint, the prospect alleged that the property manager initially approved her tenancy application but rescinded the approval after meeting her and seeing that she uses a wheelchair. The prospect’s daughter had handled most aspects of the application process, including viewing the unit. When the prospect arrived in a wheelchair to sign the lease, the property manager allegedly refused to rent her the unit and accused her and her daughter of misrepresenting the prospect’s identity by bringing other individuals to view the unit.

“The Fair Employment and Housing Act promises that all tenants, regardless of disability, have equal access to housing,” Kevin Kish, Director of the California Department of Fair Employment and Housing, in a statement. “Housing providers have a legal obligation to eliminate unlawful bias from every stage of the housing application process.”

Fair housing law bans discrimination against applicants and residents because they—or someone they’re associated with—is a member of a protected class. HUD says that the FHA’s disability provisions were intended to prohibit not only discrimination against the named tenant, “but also to prohibit denial or housing opportunities to applicants because they have children, parents, friends, spouses, roommates, patients, subtenants or other associates with disabilities.”

Example: In December 2018, HUD announced that a New Jersey condo association representing residents of a 55-and-older condominium development has settled a complaint alleging that it refused to sell a condo to a man with disabilities and his wife because the couple planned to have their adult disabled daughter live with them. The settlement requires the association to pay a $9,000 civil penalty to the United States, undergo fair housing training, and make changes to the associations’ bylaws as they relate to reasonable accommodations. The wife, now a widow, is pursuing claims against the association in state court. The association denies that it discriminated against the family.

“No family whose members have disabilities should be denied the reasonable accommodations they need to make a home for themselves,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Hopefully, today’s ruling will remind homeowner associations of their obligations under the Fair Housing Act and encourage them to follow the law” [Secretary, HUD v. Tamaron Association, December 2018].

Senior communities must be prepared to comply with the full array of disability protections. For example, the FHA requires communities to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. The law also requires owners to permit residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises.

Example: In December 2017, the owner and property manager of a California community agreed to pay $11,000 to resolve a HUD complaint alleging disability discrimination against a resident with a mobility impairment. According to her complaint, the resident requested to have a live-in aide and a key to a locked gate near her unit to make it easier for her to come and go. In both instances, she said that the owner and property manager asked her intrusive questions about her disability, challenged whether she really had a disability, asserted that the development was for individuals who could live independently, and ultimately denied her requests.

“Residents with disabilities have the right to reasonable accommodations that allow them to use and enjoy their home, without unnecessary and invasive questioning,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work with housing providers to ensure they meet their obligation to comply with national fair housing laws.”

Example: In December 2018, the Fair Housing Justice Center (FHJC) announced that a settlement has been reached with the remaining defendants in two federal lawsuits against the operators of dozens of nursing homes and assisted living facilities for allegedly refusing to make American Sign Language (ASL) interpreter services available to deaf and hard-of-hearing residents. Though denying the allegations, the defendants in the latest settlement agreed to pay $245,675 in damages and attorney’s fees to resolve the case.

The FHJC says that the settlements in these cases ensures that deaf and hard-of-hearing people will have access to ASL services and other auxiliary aids and services as a reasonable accommodation in 61 nursing homes and 35 assisted living facilities in the New York City region. The settlement agreements reached with the defendants in these two cases also yielded a total monetary recovery of nearly $1.2 million in damages and attorney’s fees.

Rule #6: Review ‘Independent Living’ Requirements

Depending on the circumstances, you could face a fair housing complaint for imposing independent living requirements on applicants or residents. Courts have found that a policy requiring applicants to demonstrate an ability to live independently violates fair housing laws protecting individuals with disabilities [Cason v. Rochester Housing Authority, August 1990].

Example: In September 2017, the owner and managers of a 41-unit community in California agreed to pay $18,500 to resolve allegations of discrimination against elderly residents with disabilities who relied on support from caregivers. A fair housing organization filed the complaint on behalf of an elderly resident facing eviction after returning from the hospital with support from a part-time caregiver. Allegedly, the owner and property manager said that they didn’t want the “liability” of her remaining in her home, threatened to call the county to have her “removed,” ordered her to move out, and asked invasive questions about the extent of her disabilities. According to the organization’s complaint, its investigation corroborated the resident’s allegations and revealed that testers calling for disabled relatives were told that the complex was for “independent living” and people who “can take care of themselves.”

Example: In Michigan, fair housing advocates recently sued an affordable senior housing apartment complex, alleging that the community applies “independent living” requirements to force residents with disabilities to move, even if those residents are meeting all the requirements of the lease. The complaint asks the court to recognize the community’s practices as discriminatory and prevent the complex from forcing tenants with disabilities to leave their homes when they remain capable of meeting all of their lease obligations.

“Civil rights laws ensure that people with disabilities can decide for themselves where and how to live in the community of their choosing,” says Susan Silverstein, Senior Attorney at AARP Foundation. “The law doesn’t allow landlords to refuse to accommodate tenants with disabilities,” adds a lawyer for the Michigan Clinical Law Program, “and it certainly doesn’t allow landlords to refuse to let tenants age in place just because they might need some outside help.”

Example: And in New York, fair housing advocates and two individuals sued the state and four adult care facilities, alleging that they maintained and enforced blanket policies barring wheelchair users, regardless of their individual needs or abilities, and steered applicants who use wheelchairs to nursing homes.

One of the individual plaintiffs, an elderly woman with disabilities, alleged that she was barred from returning to one of the communities once she began using a wheelchair. According to the woman, the community tried to evict her because of an internal policy barring admission of people who use wheelchairs and state health department regulations that supported such policies at these and other facilities.

The lawsuit also alleges that New York State promotes disability discrimination through its regulations and policies, including its policy permitting adult homes to ban wheelchair users from admission. Until recently, state health department regulations stated that adult homes and assisted living programs should not admit or retain people who are “chronically chairfast.”

The state has since amended the regulations to eliminate the phrase “chronically chairfast” and to add language that operators may not exclude individuals solely because they primarily use a wheelchair for mobility and must make reasonable accommodations as necessary to comply with the law. Last fall, the court issued an order directing the community to allow the elderly woman to return to her home. The case is still pending in federal court.

Rule #7: Comply with Applicable State and Local Laws

It’s critical to review applicable state and local fair housing laws because the laws affecting senior housing may vary substantially, depending on your location. For example, HUD points out that federal fair housing law doesn’t cover age discrimination, which is a protected characteristic under some state and local fair housing laws.

Moreover, HUD notes that some state and local governments with fair housing laws that have been determined to be substantially similar to the federal law may not include an exemption from the familial status discrimination for housing for older persons.

Alternatively, some state or local laws impose different standards for the senior housing exemption. In California, for example, the legislature adopted more stringent requirements on senior housing than is required under the FHA “in recognition of the acute shortage of housing for families with children” in that state. The law imposes specific requirements related to accessibility, common areas, and refuse collection.

Still other state and local laws apply an older version of the federal exemption. Under the original 1988 legislation, 55-and-older communities had to have “significant facilities and services specifically designed to meet the physical or social needs of older persons” to qualify for the exemption.

Though Congress eliminated the “significant services and facilities” requirement from federal fair housing law, some states didn’t follow suit. In Georgia, for example, communities are still required to furnish “significant facilities and services specifically designed to meet the physical or social needs of older persons” to qualify for the senior housing exemption.

Tip: HUD urges communities to check all relevant state, local, and federal laws, as well as any requirements imposed as a term of governmental financial assistance before implementing policies and procedures that limit residents’ eligibility. Because of the complexity of the issues involved, you should get legal advice from an attorney well versed in the legal requirements for senior housing issues in your jurisdiction. 

MHCO Editor's Note:  This summary is extensive with a lot of information.  A PDF copy of the same summary as below is attached above (the attached pdf version may be a more appropriate format) along with five new or revised MHCO forms that will be necessary for your to use for non payment of rent evictions.  These forms are not 'fillable' and can only be found on this web site attached to this article.  As we move through the COVID-19 crisis MHCO will likely be updating and revising these forms - please use the forms on the MHCO web site for the most current.  Thank you for your patience.

By Phillip C. Querin, MHCO Legal Counsel

Background. HB 4401 was signed by the Governor on December 23, 2020. It was the product of the Oregon Legislatures Third Special Session. 

Ostensibly, this was to be an extension of the current eviction moratorium that was scheduled to expire on Jan. 1. The new moratorium will now expire on July 1, 2021. However, if an extension was all the legislators sought to accomplish, they exceeded their own stated expectations. Actually, they had to deal also with HB 4213, which was the product of 2020’s First Special Session. 

In response to Covid-19 related financial hardships, the Oregon government passed HB 4213 in mid-2020. The bill prohibited evictions for nonpayment of rents, charges, and fees and no-cause evictions throughout a defined “Emergency Period.” The Emergency Period originally ran from April 1, 2020 to September 30, 2020. 

HB 4213 further established an additional six-month elective “Grace Period” during which the tenant could arrange to pay back their accrued rent arrearages. The tenant was required to pay back their outstanding rents, charges, and fees at the end of the Emergency Period unlessthey notified their landlord that they intended to use the additional six months.  The Grace Period originally began at the end of the Emergency Period and ran until March 31, 2020. Landlords were prohibited from filing nonpayment and no-cause evictions based on unpaid rent accrued during the Emergency Period. 

All rents, charges, and fees accruing outside of the Emergency Period still must be paid as agreed under the rental or lease agreements. For-cause evictions were always still available to landlords.

On September 28, 2020, in recognition that Covid-19 hardships were still continuing, Governor Brown issued Executive Order 20-56 which extended the Emergency Period and corresponding prohibition on no-cause and nonpayment residential evictions to December 31, 2020. The executive order did notextend the Grace Period – all back rents, charges and fees accrued between April 1, 2020 and December 31, 2020 were still due on or before March 31, 2020.

Unfortunately, what occurs when (a) drafters are rushed, and (b) their work product is not subject to any review or amendment, as was the case with HB 4401, the result is a bill that creates more questions than answers. While it purports to provide funding for landlords who have suffered as a result of the many Executive Orders and makeshift legislation such as HB 4312, the reality is not promising. Why? Because the success of the bill still requires the Oregon Legislature to put some money where its mouthlegislation is – the program must still be funded, and HB 4401 did nothing to address that issue.  

Oregon House Bill 4401.This bill was passed December 21, 2020, and signed by the Governor on December 23, 2020. It accomplished two major objectives[1]:

1) Directing the Oregon Housing and Community Services Department to implement a program for direct aid to landlords reimbursing a percentage of outstanding rents; and 

2) Modifying the Emergency Period and Grace Period created under HB 4213 for tenants who claim financial hardship. 

The Program.  HB 4401 authorizes the Oregon Housing and Community Services Department (“OHCS”) to pay residential landlords 80% of unpaid rents due after April 1, 2020 and up to the date of the application, for certain qualified tenants. 

Landlords,[2]or their designees, must apply to OHCS to qualify for distributions for tenants who: 

1. Have not paid rent, and
2. Have submitted a signed Hardship Declaration Form. (OHCS is directed to expedite implementation of the landlord compensation fund but the exact look and function of the program is unknown as of the writing of this summary.)

OHCS will develop an online application system to handle reimbursement requests. The application and related forms will be available in English, and translated for non-English speakers as well.[3]The program will also have more than one application period to assure broader reach and eligibility. It is unclear at this time how many application periods will be available. Landlords should be eligible to apply more than once, state funds allowing, if unpaid rents and fees continue to accumulate after the first application and distribution. 

Landlord application. It will require, at a minimum:

1. A copy of the tenants’ Hardship Declaration Forms;
2. A description of the unpaid rent for all current tenants;
3. An agreement to forgive the remaining 20% of unpaid rent for  tenants accrued between April 1, 2020 and the date of the application;
4. An agreement that, should the landlord receive from the tenant, or on the tenant’s behalf, any portion of the unpaid rent (forgiven or paid through the distribution) within a certain window specified by OHCS, that they will repay OHCS;;
5. An agreement that the landlord is not seeking reimbursement for rents due from immediate family members;[4]
6. An agreement that while the application for reimbursement is pending, the Landlord will not terminate[5]a tenant without cause or for non-payment;[6]
7. Any other information or requested by OHCS in the application;

In order to reach landlords who are struggling the most (i.e. fewer rentable units or a higher percentage of outstanding rents) OHCS may establish qualifications, priorities, restrictions or limits on distributions, which may include:

1. Limits per tenant, per landlord, or per time period; 
2. The number of units a landlord must own; or 
3. The percentage of total rent unpaid.

OHCS may coordinate with the local housing authority to administer the rules and distribute the reimbursement funds. Either OHCS or the appropriate housing authority will notify tenants of the distribution to the landlord on their behalf and the agreed-upon amount of forgiveness to which they are entitled. OHCS may also conduct outreach to landlords and tenants, including non-English speaking parties.

Eviction Moratorium Extension. The Landlord distribution program provisions are set to automatically repeal on January 2, 2023. 

Forms.

Emergency Period and Grace Period Extensions.  For all renters, the Emergency Period (until December 31, 2020)[7]and Grace Period (through March 31, 2021) as defined in HB 4213 remain unchanged, unless:

1. The landlord fails to provide a Notice of Eviction Protection (see MHCO Form 111 below); and
2. The landlord fails to provide tenant with a Tenant’s Hardship Declaration Form (see  MHCO Form 110 below); together with
   1. AnynoticegivenunderSection3(5)(c),chapter13,OregonLaws2020(firstspecial session) (Enrolled House Bill4213);[8]and
   2. Everyterminationnoticefornonpayment of rentdeliveredbeforeJune30,2021;and

c. Anysummonsforevictionbasedonaterminationnoticefornonpayment  delivered before June 30, 2021;

---OR---

3. Tenant fills out and returns the Hardship Declaration Form asserting financial hardship.

Afteratenantdeliversacopyofthe Hardship Declarationto the Landlord,theEmergencyPeriodandendoftheGracePeriodareextendedtoJune 30,2021. During that time, the landlordmaynot takeorattempttotakeanyactiontointerferewithatenant’spossession.

The Hardship Declaration Form. It may be submitted to the landlord at any time, up to and including the first appearance in an action to recover possession. Delivery of the Hardship Declaration Form may result in dismissal of no-cause or nonpayment eviction proceedings during the Emergency Period and Grace Period.

Landlords may not: 

1. Challenge the accuracy of a tenant’s Hardship Declaration in an eviction proceeding;
2. Require additional information beyond what is required by the Hardship Declaration Form; 
3. Demand more than one copy of the Hardship Declaration per household or tenancy; 
4. Prohibit the tenant from submitting a Hardship Declaration in a language other than English if the tenant is using an approved translated form from the courts; 
5. Prohibit the tenant from submitting the Hardship Declaration to the landlord in any manner, format or means available, including but not limited to, a photograph of the document submitted by email or text message.

Evictions During the Emergency and Grace Periods.  Only the following landlord evictions are permitted during either of these two periods:

1. Evictions for violation of a rental agreement, other than non-payment may continue;
2. Evictions for nonpayment occurring before April 1, 2020 may also continue;
3.  “Landlord-cause” evictions[9]are allowed after the first year of occupancy. Landlord cause evictions include:

1. Demolition or converting dwelling unit to non-residential use;
2. 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; 
3. 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 
4. Landlord has accepted an offer to purchase the dwelling unit; purchaser will use unit as a primary residence.[10]

Important Changes to Landlord Nonpayment of Rent Notices.  The 72-hour nonpayment of rent notice under ORS 90.394 is now a 10-day notice ending at 11:59 pm. The 144-hour nonpayment of rent notice is now a 13-day notice ending at 11:59 pm. These changes expire July 1, 2021.[11]

Tenant Relief for Landlord Violations.  Any violation of the above rules may result in the tenant being granted an injunction to recover possession or address any other violations, and the award of the equivalent of three-months rent on top of any actual damages. Landlord’s violation of the above rules will also give the tenant a defense to an eviction. In addition, tenant will be entitled to prevailing party fees, attorney fees or costs and disbursements unlessthe landlord can demonstrate:

1. That they delivered the required Notice of Eviction Protection and Hardship Declaration Form;
2. That they did not know or have reason to know at the time they filed the action that the Hardship Declaration Form had been completed and returned; and
3. That they promptly dismissed the action upon learning of the existence of the completed forms.

Summons and Complaint Forms: Note: Changes resulting from the Eviction Moratorium laws, and HB 4401’s changes to Landlord-Tenant statutory language are reflected in the  Summons and Complaint forms for residential evictions.[12]Summons and Complaint revert to the standard language on July 1, 2021.

Expiration. Under the terms of HB 4401 the provisions related to the eviction moratorium will automatically repeal on July 1, 2021.

Miscellaneous Provisions and Changes to HB 4213. 

1. A landlord may apply a last month’s rent or security deposit to the Nonpayment Balance if a tenancy terminates prior to the end of the relevant Grace Period;
2. Tenants with a Nonpayment of Rent Balance who are still within their Grace Period are not considered to be in default;
3. A landlord may accept partial payment of rents, charges and fees during the Grace Period. It does not constitute a waiver of the landlord’s right to terminate a tenancy for cause; nor to terminate a tenancy for nonpayment after the expiration of the relevant Grace Period;
4. Amendments to HB 4213 expire on September 1, 2021;
5. For all  Nonpayment evictions, the statute of limitations is tolled and does not begin to run against the Nonpayment claim until July 1, 2021. 

Unanswered questions.  In no particular order, here are some questions about HB 4401 that are sure to arise:

• What happens if landlord sends the Hardship Declaration to a tenant, who does not respond?
• Since landlords need the tenant’s Hardship Declaration to complete their application for 80% of their unpaid rent, is the landlord stymied?
• While the landlord will be able to file for eviction after the Grace Period ends under the old law (March 31, 2021), HB 4401 is clear that the tenant can submit the Hardship Declaration as late as the first appearance at the FED, and bring the proceeding to a halt.
• So it’s a bit of a guessing game what tenants will do; ignore the landlord’s Notice of Eviction Protection until an FED is filed, or cooperate with the landlord and sign and return the Declaration? What incentive do tenants have to cooperate, if they can wait until the last minute to submit the Hardship Declaration?  
• In any event, no action can be taken against the tenant who does not cooperate until after March 31, 2021 at the earliest. 
• Since the Legislature has no landlord reimbursement program in place yet, one has to wonder when, and if, it will be of any help now.
• There is no question that the landlord funding will eventually be exhausted, and some will be left out. 
• So, the take-away right now is that landlords should immediatelyreach out to their tenants in arrears, get their Hardship Declarations signed, so the application for reimbursement can be processed as soon as possible. 80% of unpaid rent is better than nothing - which is what could occur if the application is delayed. 

Ø Tenants do benefit by their cooperation, since when the moratorium is extended, they are not at risk of any eviction action until after July 1, 2021.  This is the message landlords need to get out to their tenants.

• Otherwise, a landlord may bring an evictionfornonpaymentofrent,chargesandfeesaccruedfrom April1,2020,toDecember31,2020 immediately after March31,2021. Perhaps this also should be part of the landlord’s message.

[1]The bill also made a few additional changes to Oregon Landlord-Tenant statutes which will be addressed below

[2]“Landlord,” for the purposes HB 4401, includes a manufactured dwelling park nonprofit cooperative.

[3]The bill does not specify which non-English languages OHCS must provide, but specifies later that the Oregon Judicial Department provide translated forms (including the Hardship Declaration Form) in Spanish, Korean, Russian, Vietnamese, and Chinese.

[4]Landlord may not seek reimbursement for any tenants that are immediate family members. For the purposes of this law “immediate family” means: a) an adult person related to the landlord by blood, adoption, marriage or domestic partnership; b)an unmarried parent of a joint child; c) a child, grandchild, foster child, ward or guardian of the landlord; or d) child, grandchild, foster child, ward or guardian of any person listed in (a) or (b). (“immediate family” definition from ORS 90.427)

[5]“Termination notice without cause” means a notice delivered by a landlord under ORS 90.427 (3)(b), (4)(b) or (c), (5)(a) to (c), or (8)(a)(B) or (b)(B) (HB 4213)

[6]“Nonpayment” means the nonpayment of a payment that becomes due during the Emergency Period to a landlord, including a payment of rent, late charges, utility or service charges or any other charge or fee as described in the rental agreement or ORS 90.140, 90.302, 90.315, 90.392, 90.394, 90.560, or 90.630. (HB 4213)

[7]Emergency Period Extended to December 31, 2020 by Executive Order 20-56; confirmed in HB 4401 Section 8 (Amendment to Section 3, Chapter 13, Oregon Laws 2020 (first special session )(Enrolled House Bill 4213))

[8]Under the original version of HB 4213, there is no Section3(5)(c). To find the required contents of the voluntary notice referred to in 2) a., one must look to the new HB 4401 Section 8 and follow the amended language. 

[9]See, ORS 90.427(5)(a)-(d).

[10]Note: This does not include listing or marketing the home for sale. Seller/landlord would have to have a pre-arranged buyer who was willing to buy without inspections, etc., or a tenant who was willing to permit the same with 24-hour notice. Of course, seller/landlord could always make financial arrangements with tenant for concessions.

[11]Amendments to 90.394 (2)(a) and (b). These changes from hour-notices to day-notices affect several other statutes that refer to 90.394. Changes revert to original language on July 1, 2021.

[12]For summons language: see ORS 105.113 (as amended by HB 4401 Section 13); for complaint form: ORS 105.124 (as amended by HB 4401 Section 15)

By:  Phillip C. Querin, MHCO Legal Counsel

The difference between a well-run manufactured housing community and one with problems frequently lies with the rules and regulations each facility has adopted.  Here are some tips for developing a set of rules and regulations that may be helpful in the successful operation of your community:

1. Avoid Ambiguity.  When writing a rule, make sure that it is understandable.  If a court or jury were called upon to enforce it, would they be able to understand it?  Is it fair?  Is the rule capable of different interpretations?  Is it too vague so as to give little or no guidance to the tenant?  Avoid using general terms which are so subjective that reasonable people could differ about what constitutes a violation.  If necessary, use an example.  If the rule must necessarily be open-ended (e.g. prohibiting loud and disturbing noise or offensive behavior), tie the violation to whether the conduct results in complaints from other tenants.  That way the issue does not become whether the manager is arbitrarily exercising his or her own discretion.
2. Updating the Rules.  Oregon landlord-tenant statutes can change every yerar when the Legislature meets.  Circumstances and needs can change more frequently than that.  At least once a year, take a look at your rules to see if they are legally sufficient and whether they meet the community's present needs.  It is much easier to make smaller changes to the rules one or two at a time rather than trying to get the tenants to agree to a wholesale change of all the rules at once.  If your tenants are on leases, you have the right to submit new park documents (i.e. rules and rental agreement) not less than 60 days prior to the expiration of the lease term.  A tenant shall accept or reject the landlord's proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord.  If accepted, the rules and rental agreement will define your new rental relationship with the tenants.  It is one good way to update your rules, without having to go through a formal rules change.
3. Legally Adopting Your Rules.  If the tenants are on month-to-month tenancies, Oregon law requires that the landlord must give at least 30 days' advance written notice to make a change in the rules.  If 51% or more of the tenants affected by the rule change object within the 30 days of service of the notice, the change(s) will not go into effect.  However, if less than 51% object, the new rule(s) will become effective in 60 days from the date the notice was served on the tenants.  The law regarding the contents and timing of the notice of rule change must be strictly followed.  ORS 90.610 describes the process.  Read it carefully!  And use MHCO Form 60: "Sixty Day Notice of Rule Change".  Simply sending a letter to the tenants informing them of a change in the rules is insufficient.  If the rules are not properly adopted they will not be enforceable.  Frequently, the landlord or manager will first learn that their rules were improperly adopted when they try to enforce them.  If one or more of the rules you seek to adopt are opposed by a small but vocal minority who lobby the rest of the tenants against your change, consider meeting with them prior to giving notice of the proposed change, in an effort to mutually draft language that everyone would find acceptable.  If over 51% of the effected space still object, consider implementing the new rules for all new incoming tenants only.  That way, over time, the new rules will have wider and wider application as the older tenants

1. Keeping Track of Your Rules.  If there are more than one set of rules (i.e. old rules for existing tenants and new rules that are given to new tenants) make sure you keep track of which rules apply to which tenant.  Put copies of the applicable rules, together with the rental agreement and statement of policy, in each tenant's file.  Attempting to enforce the wrong rules against a tenant can result in disaster.  Show the date of the latest revision on the first page or, better yet, on the footer of each page.
2. Troublesome Issues.  There are some issues that seem to never go away.  Occupancy issues are one of those troublesome areas that frequently result in litigation.  If your community has rules limiting the time a visitor can stay, make sure it is clear and unambiguous.  Frequently tenants try to avoid these limits by calling their visitor a "house-sitter."  The best approach is to set a definite date, e.g. two weeks, and require that all persons who remain over that period of time must satisfy the same requirements as imposed on incoming tenants - e.g. background check, criminal check, references, etc.  Require that they sign the rental agreement.  If the existing tenant attempts to get around these occupancy rules by arguing that the person is there to provide necessary assistance because of certain physical or emotional disabilities, legal counsel should be immediately consulted due to Fair Housing implications.
3. Consistent Enforcement.  It is not uncommon for landlords and managers to grant exceptions and extensions of time for tenants to come into compliance with a particular violation.  However, landlords can get into trouble when they ignore some violators and enforce the rules against others.  Maintenance violations are a good example.  In order to enforce these rules you must be consistent.  Regular community inspections should be made.  Warnings should be given uniformly to all violators.  Thirty day notices should be given only as a last resort.  If the tenant requests an extension of time to comply, put the agreement in writing.  In those cases where legal action may need to be taken, make sure legal counsel reviews the case before filing the eviction.   Make sure your attorney is aware of your prior efforts to secure the tenant's compliance.  It is always best if the tenant's file shows a clear paper-trail of your efforts to secure voluntary compliance.

Rules and regulations are not foolproof.  Some tenants will always try to find reasons why they do not apply to them.  But clarity, consistency, and fair enforcement will go a long way in keeping peace and harmony in your manufactured housing community.

1. Avoid Ambiguity.  When writing a rule, make sure that it is understandable.  If a court or jury were called upon to enforce it, would they be able to understand it?  Is it fair?  Is the rule capable of different interpretations?  Is it too vague so as to give little or no guidance to the tenant?  Avoid using general terms which are so subjective that reasonable people could differ about what constitutes a violation.  If necessary, use an example.  If the rule must necessarily be open-ended (e.g. prohibiting loud and disturbing noise or offensive behavior), tie the violation to whether the conduct results in complaints from other tenants.  That way the issue does not become whether the manager is arbitrarily exercising his or her own discretion.
2. Updating the Rules.  Oregon landlord-tenant statutes can change every two years when the Legislature meets.  Circumstances and needs can change more frequently than that.  At least once a year, take a look at your rules to see if they are legally sufficient and whether they meet the community's present needs.  It is much easier to make smaller changes to the rules one or two at a time rather than trying to get the tenants to agree to a wholesale change of all the rules at once.  If your tenants are on leases, you have the right to submit new park documents (i.e. rules and rental agreement) not less than 60 days prior to the expiration of the lease term.  A tenant shall accept or reject the landlord's proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord.  If accepted, the rules and rental agreement will define your new rental relationship with the tenants.  It is one good way to update your rules, without having to go through a formal rules change.
3. Legally Adopting Your Rules.  If the tenants are on month-to-month tenancies, Oregon law requires that the landlord must give at least 30 days' advance written notice to make a change in the rules.  If 51% or more of the tenants affected by the rule change object within the 30 days of service of the notice, the change(s) will not go into effect.  However, if less than 51% object, the new rule(s) will become effective in 60 days from the date the notice was served on the tenants.  The law regarding the contents and timing of the notice of rule change must be strictly followed.  ORS 90.610 describes the process.  Read it carefully!  Simply sending a letter to the tenants informing them of a change in the rules is insufficient.  If the rules are not properly adopted they will not be enforceable.  Frequently, the landlord or manager will first learn that their rules were improperly adopted when they try to enforce them.  If one or more of the rules you seek to adopt are opposed by a small but vocal minority who lobby the rest of the tenants against your change, consider meeting with them prior to giving notice of the proposed change, in an effort to mutually draft language that everyone would find acceptable.  If over 51% of the effected space still object, consider implementing the new rules for all newincoming tenants only.  That way, over time, the new rules will have wider and wider application as the older tenants

4. Keeping Track of Your Rules.  If there are more than one set of rules (i.e. old rules for existing tenants and new rules that are given to new tenants) make sure you keep track of which rules apply to which tenant.  Put copies of the applicable rules, together with the rental agreement and statement of policy, in each tenant's file.  Attempting to enforce the wrong rules against a tenant can result in disaster.  Show the date of the latest revision on the first page or, better yet, on the footer of each page.
5. Troublesome Issues.  There are some issues that seem to never go away.  Occupancy issues are one of those troublesome areas that frequently result in litigation.  If your community has rules limiting the time a visitor can stay, make sure it is clear and unambiguous.  Frequently tenants try to avoid these limits by calling their visitor a "house-sitter."  The best approach is to set a definite date, e.g. two weeks, and require that all persons who remain over that period of time must satisfy the same requirements as imposed on incoming tenants - e.g. background check, criminal check, references, etc.  Require that they sign the rental agreement.  If the existing tenant attempts to get around these occupancy rules by arguing that the person is there to provide necessary assistance because of certain physical or emotional disabilities, legal counsel should be immediately consulted due to Fair Housing implications.
6. Consistent Enforcement.  It is not uncommon for landlords and managers to grant exceptions and extensions of time for tenants to come into compliance with a particular violation.  However, landlords can get into trouble when they ignore some violators and enforce the rules against others.  Maintenance violations are a good example.  In order to enforce these rules you must be consistent.  Regular community inspections should be made.  Warnings should be given uniformly to all violators.  Thirty day notices should be given only as a last resort.  If the tenant requests an extension of time to comply, put the agreement in writing.  In those cases where legal action may need to be taken, make sure legal counsel reviews the case before filing the eviction.   Make sure your attorney is aware of your prior efforts to secure the tenant's compliance.  It is always best if the tenant's file shows a clear paper-trail of your efforts to secure voluntary compliance.

Rules and regulations are not foolproof.  Some tenants will always try to find reasons why they do not apply to them.  But clarity, consistency, and fair enforcement will go a long way in keeping peace and harmony in your manufactured housing community.

Answer: You are referring to MHCO Form 35B "Manufactured Home Storage Agreement (With Homeowner)." Before addressing your specific questions, it is necessary to point out what this form is intended to do. Here are some that come quickly to mind: (a) A resident, living alone, moves out of the home and wants to sell it on site; (b) A person inherits or buys the home, but cannot be approved for occupancy due to the background check or their financial condition; (c) A resident, living alone, passes away, and the estate wants to sell it.

It is important to remember that this is a "storage" agreement not a "rental" agreement. In fact, it expressly disclaims a "landlord-tenant" relationship between the community and the home owner. Accordingly, the legal relationship is more akin to one in which a party stores their property in a commercial storage facility.

You should not treat a breach of the Storage Agreement as something that is remedied by going to FED court. Rather, the provisions of Oregon law dealing with statutory liens in ORS 87.152 et. seq. apply. This process can get very complicated, and I highly recommend that you secure the services of an attorney before proceeding.

Lastly, the MHCO Storage Agreement contains a provision for mandatory arbitration, in lieu of any other court or legal process. However, the box on the form must be checked in order for it to apply. The reason that this arbitration alternative exists is because it was believed (and still is) that the process mandated by the statutes might be better implemented for park owners through arbitration, which can be cheaper, faster, and easier - especially if the matter becomes contested.

The MHCO form does require that the home be maintained by the owner. Accordingly, you may wish to consider sending a notice to the owner demanding that they do the clean-up work or you will do so, and pass the charge on to them. I don't think the issue of payments and maintenance are the same. Accordingly, I don't believe there is a need to discontinue accepting payments. However, all of this needs to be handled carefully, and for this you should speak with your attorney.

Termination for Continuing Violations. In manufactured housing communities, the type of conduct that would make a tenant subject to this 30-day termination notice is the failure to maintain the space which is required under the rules or rental agreement. MHCO Form 43 would be used which – at the title states – is “for continuing violations only.” ORS 90.630(3)(d) defines this as conduct that is “constant or persistent or has been sufficiently repetitive over time that a reasonable person would consider the conduct to be ongoing.”

This form is to be completed according to its instructions must specify, in detail, if necessary (including pictures if appropriate):  (i) the reason for the violation: (ii) the source of the violation, e.g., rules, rental agreement, statute, etc.; and (iii) at least one possible remedy. If the violation is cured within the 30-day period, the problem is solved. If it is not cured, the landlord has the right to then file for eviction (being sure to append the 30-day notice to the complaint). Taking photos of the condition upon which the notice is based on the date of the notice and the 31st day thereafter is essential for use in court.

Termination for Distinct Acts or Omissions. However, when the violation is a single event, such as speeding in the community; loud music or other disturbances; fighting; threats of violence, etc., things become more complicated since the landlord does not want to give the tenant 30 days to stop engaging in the offensive activity.  For that reason, landlords must use MHCO Form 43A for violations that constitute a “distinct act or omission.”

The protocol in completing this form is much different than Form 43 and must be followed carefully; it can get confusing. Here it is:

1. The “Deadline” to correct the violation can be no sooner than the 4th day after the date of the notice if hand-delivered or mailed and attached, or the 7th day after the date of the notice if sent via regular mail. (Although not required by law, it is recommended that landlords obtain a certificate of mailing from the post office if regular mail is used.)

2. Similar to Form 43, in 43A the basis for the violation (e.g., rules, rental agreement, etc.) the violation, and the event(s) to cure must also be specified with particularity.

3. If correction does not occur by the Deadline, the tenancy automatically ends on the “Termination Date” which must be at least 30 full days after the date of the notice.  Thus, if the tenant is not out by the Termination Date, the eviction may be filed.  Filing for eviction before the Termination Date would, in my opinion, be premature, since the tenant still has the right to remain at the space for the balance of the month. For repeat violations, see (iv) below.

4. If substantially the same violation occurs within six months following the date of the notice (43A), the landlord may terminate with 20 days written notice to the tenant and there is no right to cure.

Conclusion.  The above discussion is a summary only. There are various nuances. Conduct by a pet or assistance animal is not included. Note there can be some overlap with conduct triggering the 24-hour notice statute under ORS 90.396 (which may be preferable if the conduct involves health and safety). Accordingly, if you have questions that are not answered by the above, check with you legal counsel before filing the notice and before filing an eviction based upon the notice.

[1] Note that rules and regulations are also considered a part of the “rental agreement.”

Answer: Generally the short answer is yes, the Federal Fair Housing laws apply to RV rentals. It also does not matter whether the RV rental is a vacation occupancy rental or a long-term rental. The discrimination laws apply either way.

Specifically, the Federal Fair Housing Act ("FHA") prohibits discrimination in the rental of a "dwelling" based upon race, color, national origin, religion, sex, familial status, and disability. "Dwelling" includes any vacant land which is offered for lease for locating any "structure" on it. A structure would include an RV.

(Note: State fair housing statutes also protect against discrimination based upon race, color, sex, marital status, source of income (excluding Section 8), familial status, religion, national origin, and disability. Some local ordinances [e.g., Portland and Eugene] protect against discrimination based upon age and sexual orientation.)

As such, and as an initial matter, landlords should avoid asking any questions of RV rental applicants related to these prohibited areas. The sole exception may be the age of a potential applicant if the RV section qualifies as a "55 or older" facility under the Federal Fair Housing Act. The qualifications for "55 or older" housing are very strict and you should always check with your attorney before asking age-related questions on your rental application.

During an RV tenancy, landlords must also be careful to avoid anything that might be interpreted as discriminatory. For example, rent increases should typically be made across the board to avoid discrimination allegations. Another thing to avoid is the uneven enforcement of your rules and regulations. Every RV tenant should be held equally accountable to follow the rules, and appropriate notices should be issued to every tenant who violates the rules to leave no room for any discrimination claims.

Reasonable Accommodation

The Fair Housing Act also prohibits acts that "discriminate against any person... in the provision of services or facilities in connection with [a] dwelling, because of a handicap of that person or any person associated with that person." The FHA defines discrimination as "a refusal to make reasonable accommodation in its rules, policies, practices, or services, when such accommodations may be necessary to afford a [disabled] person equal opportunity to use and enjoy a dwelling." The FHA obligates landlords to make "reasonable accommodations" in the "rules, policies, practices, or services," necessary to afford handicapped persons "equal opportunity to use and enjoy a dwelling."

This means that if an RV tenant requests an "accommodation" for his or her handicap, the landlord is obligated to provide it unless it causes a financial or administrative burden. A typical example might be if a handicapped RV tenant requested an RV rental space closest to the park's RV restrooms/showers. In most cases, the landlord would need to accommodate this request if it were possible to accommodate the request without causing a "burden."

However, landlords need not provide housing to individuals whose "tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." A good example of this would be if an RV tenant requested to keep a pit bull as a "companion animal." In most instances, the landlord would be justified in rejecting this request since pit bulls are generally considered a dangerous breed.

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

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

Answer: First, please understand that Oregon law does not directly deal with this - and neither is it addressed in most rental/lease agreements, including MHCO's. So my responses are based upon my opinion alone. Until an appellate court rules on these issues - which is unlikely, since most such cases are never appealed - the best we can do is speculate. My answers are in italics below.

1. Do we write a new lease for the remaining resident or keep the old lease with both residents on the lease? I think I would prefer to see a new lease signed by the remaining resident - even if title remains in both their names. That way, the ex-spouse cannot argue that he or she has a right of occupancy a year or two down the road, when they patch things up, or one moves out and the other moves back in. A new lease would require than any new occupants be qualified all over again. Note that if the lease is changed into the name of the remaining resident, the ex-spouse would certainly have no liability for space rent going forward.

2. Can we legally keep the resident that moved out, responsible for the lease after a divorce and separation of assets? Technically, yes. Neither the divorce decree nor the parties themselves can - without your consent - alter their joint legal duties under a lease they both signed. [This situation is not dissimilar to spouses jointly signing their mortgage and then divorcing; they both remain liable under the mortgage, even though one vacates the home.] The best a divorce court can do is to make the occupying ex-spouse primarily responsible for the rent and give indemnity rights to the non-occupying ex-spouse in case she or he end up having to pay for unpaid rent that should have been paid by the occupying ex-spouse.

3. Do we rescreen the remaining resident to see if he/she qualifies on their own? I have a visceral reaction to doing so - if they did not pass the credit requirements, then what? Deny them the right to stay in the community in which they have lived for a number of years? Kick them out without waiting to see whether they can - or will make the payments? That is like punishing the remaining ex-spouse for being divorced. Remember, the occupying ex-spouse will likely be the custodial parent, if children are involved. The non-custodial parent will likely have some child support obligation, which would then make the custodial parent's individual credit score less important. The same may be said even if there are no children; there may be a spousal support obligation by the non-occupying ex-spouse. It seems to me that it will become clear soon enough, whether the occupying ex-spouse can or will make the space rental payments, independent of what their current credit score may be.

4. If we do rescreen the remaining resident and he/she fails the credit or criminal background, what are our options? Before you re-screen, re-read my answer to Question No. 3 above. If the lease agreement or rules do not address the possibility of spouses divorcing - and I have never seen any that do - the ultimate decision on whether you may re-screen could be left up to a judge. I submit that judges do not like to evict people out of their homes unless there is a compelling reason to do so. A case in which a resident is being evicted for no reason other than that they no longer meet the credit criteria - with no evidence that they are in default under the lease or rules - would be a very difficult sell to most judges. It is unlikely that you would prevail. I compare this situation to requiring a resident to be re-screened upon a job loss or death of a spouse. In cases of such unplanned events occurring after residents have been approved, I suggest that you let the situation play itself out. If a resident cannot afford to pay the space rent, you will then have sufficient cause to evict. But to try to evict because you doubt the ability of the resident to pay rent in the future, is premature and likely to fail.

5. Who owns the security deposit or pre-paid rent? That depends upon whether you have the remaining resident sign a new lease. If a new lease is signed, you could issue a refund check to both of them under the first least, and require the remaining occupant to pay a new deposit under the new lease. It would be preferable, however, to see if they could agree to authorize you to leave the existing deposit in place, but permitting you to refund it, if appropriate, to the remaining occupant at the end of his/her tenancy. If no agreement can be reached, simply hold the deposit until expiration of the tenancy by the occupying non-spouse, and then, if a refund is in order, make the check out to both of them.

Answer: In Oregon, month-to-month RV tenants can be evicted with a 30-day, no-cause notice during the first year of their tenancy. After the first year, the no-cause notice to a monthly tenant would need to be a 60-day notice. Use MHCO Form 43C for no-cause RV evictions, choosing either the 30-day or 60-day notice option, depending on the length of tenancy.

Caveat: Portland and Milwaukie both have ordinances requiring 90-day no-cause notices to all monthly tenants, regardless of how long they have been tenants. The City of Bend requires 90-day notices after the first year of tenancy. In addition, Portland requires landlords to make "relocation assistance" payments to tenants evicted for no-cause, ranging from $2,900 to $4,500 - although the applicability of this requirement to RV tenants is legally questionable. Bottom line: Consult an attorney if you have an RV park in any of these cities.

If you have any week-to-week RV tenants, they can be evicted with a 10-day, no-cause notice. This applies even in the municipalities mentioned above, which all provide exceptions for weekly tenants. However, remember that to have a valid "week-to-week" tenancy, you must meet these specific requirements: (1) Occupancy is charged on a weekly basis and is payable no less frequently than every seven days, (2) there is a written rental agreement defining the landlord's and tenant's rights and responsibilities, and (3) there are no fees or security deposits (other than applicant screening charges). If your weekly tenant arrangements do not meet these specific requirements, your tenants will be treated as month-to-month tenants under Oregon law.

If you happen to have any fixed-term RV tenants, you cannot evict them with a no-cause notice until the fixed-term ends. Before that, it would require a for-cause notice (i.e., for breaking a park rule or for not paying the rent).

Finally, there is also an exception under Oregon law for RV "vacation occupants." A "vacation occupant" is someone who: (1) Rents the RV space for vacation purposes only, not as a principal residence, (2) has a principal residence other than at the RV park, and (3) does not occupy the RV park for more than 45 days. You would need to have these facts documented in a written agreement. "Vacation occupants" are not "tenants" under Oregon law. They can be asked to leave without any eviction proceedings and the sheriff can be called to assist if necessary.

As usual, you should always seek the advice of a knowledgeable attorney if you are unsure whether you can or should issue a no-cause eviction notice.