Phil Querin Q&A: Carports and Sheds in the Community – Who Should Own Them?

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February 11, 2016
Phil Querin
MHCO Legal Counsel
Querin Law

Question:  As a community owner, is it best to start selling the carport/sheds to the new residents moving into the community or keep the carport/shed as the responsibility of the community? If I do sell the carport/shed to the new resident what’s the downside?   Also, what about the carport/sheds that 2 spaces share where one side is owned by the resident and the other side is owned by the community?  Can I sell the carport/shed to current residents and what condition should the carport/shed be in when they are sold to the resident and do I need to reduce their rent and by how much?

Answer: All good questions, and ones that I have not addressed for some time.  There are several statutes that come into play:

 

90.514 Disclosure to prospective tenant of improvements required under rental agreement. 

 

(1) Before a prospective tenant signs a rental agreement for space in a manufactured dwelling park or for a converted rental space, the landlord must provide the prospective tenant with a written statement that discloses the improvements that the landlord will require under the rental agreement. The written statement must be in the format developed by the Attorney General pursuant to ORS 90.516 and include at least the following:

      (c) Identification of the improvements that belong to the tenant and the improvements that must remain with the space.

 

90.730 Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition.

 

(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.

 

 90.740 Tenant obligations. A tenant shall:

      (1) Install the tenant’s manufactured dwelling or floating home and any accessory building or structure on a rented space in compliance with applicable laws and the rental agreement.

 

In summary, what these statutes, and other in ORS Chapter 90 mean, is the following:

  • When the landlord rents a space, it includes all pre-existing structures located on the space, such as carports and sheds.
  • Does this mean the carport or shed must be maintained by the resident? In my opinion, not unless the rental agreement or rules provide otherwise. And if they so provide, it must be clearly disclosed at the commencement of the tenancy. If the roof leaked and the resident’s belongings were damaged, the landlord could have liability.
  • If a landlord wanted to transfer ownership of the carport or shed, the arrangement should be clearly documented, including the duty to maintain, and the right to remove upon vacating the space.
  • In terms of a “downside” I see very little so long as the responsibility going forward is clear; on the other hand, I see a “downside” in doing nothing, and then each side expects the duty of maintenance belongs to the other – and as pointed out above, if the structure leaks or has a fire, etc., the landlord could have liability.
  • When a space changes hands, and you want to transfer the maintenance responsibility at that time, you can do so, as long as it’s clear and fair. You cannot, for example, require that a shed that has maintenance problems, be rebuilt or be repainted.
  • On the issue of reducing the rent, ORS 90.730(7), cited above, does refer to adequate consideration if the maintenance responsibility is shifted from the landlord to the resident.  That may be true where you don’t transfer ownership of the structure to the resident. But if you do transfer ownership, and the resident, that is adequate consideration (in my opinion), so long as it is in good condition, and the arrangement was not done solely to avoid having to perform repairs.  I would want to make sure that the structure was in good condition at the time, fully inspected by the resident, and the transaction clearly documented.
  • As for the sharing of carports, one owned and the other not, it would be nice to get clarity on this between the two residents. The same rules apply, i.e. if the structure is in good repair, and the non-owner is willing to take ownership and assume maintenance responsibility, it would be better than what you have right now. As it stands, you, technically, have maintenance responsibility for the portion of the structure that is park-owned. This likely makes for confusion when repairs, such as roofing and painting are required.