Phil Querin Q&A - Clean-Up Notices vs. Notices of Termination of Tenancy

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September 6, 2016
Phil Querin
MHCO Legal Counsel
Querin Law

 

Question. What is the difference between a “Maintenance/Clean-Up Notice” (MHCO Form 47) and the other two termination notices (MHCO Form 43 – “30 Day Notice For Cause Eviction” and  MHCO 55 “30 Day Notice to Terminate and Remove Home”)?  I get confused on which one to use and when. Why do we need difference forms for these violations?

 

Answer.   This is a good question, but one that requires an understanding of several different issues.

 

You will notice that Form 47 for maintenance and clean up does not attempt to terminate the tenancy. It is merely a notice, or reminder. You may issue it as frequently as necessary, and even though you are aware of the default, you may continue to accept rent without it constituting a waiver to later issue a curable 30-day notice of termination for the same non-compliance.

 

Oregon landlord-tenant law expressly allows a landlord to accept rent after becoming aware of certain violations. See, ORS 90.412(4)(d). In summary, they include:

  1. Disrepair or deterioration of the manufactured dwelling; and
  2. A failure to maintain the rented space.

 

And ORS 90.412(5)(a) provides that for “ongoing violations” (e.g. failure to maintain the space or failure to repair the home), a landlord’s written warning notice (e.g. Form 47), remains effective for 12 months and may be renewed with a new warning notice before the end of the 12 months.  This has the effect of preserving the landlord’s right to take action at some time in the future, while accepting rent during the interim.  Thus, Form 47 is a less aggressive version of a 30-day notice of termination of tenancy under ORS 90.630 (for space maintenance issues), or ORS 90.632 (for repairs to the exterior of the home).

 

To reiterate: If the violation relates to the space, and the resident has consistently refused to clean it up, Form No. 47 is appropriate. The resident must do so within 30 days, or the tenancy will automatically terminate; if the violation relates to the home, and the resident has refused to perform the necessary repair, Form No. 55 is appropriate. This form is similar to the 30-day notice for space maintenance, but provides additional time for compliance depending on the nature of the repair, e.g. painting, which may not be feasible during the winter months.

 

When is Form 47 appropriate? In almost all instances when the violation is not something you want to immediately terminate the tenancy for, this is the better choice. If it becomes necessary to issue a curable 30-day notice of termination under ORS 90.630 for a failure to maintain the space (MHCO Form 43), or a curable 30-day notice of termination for damage or deterioration to the home (MHCO From 55) under ORS 90.632, you want to have one or more (preferably more) MHCO Form 47s in the resident’s file, so it shows that you tried to work with the resident but they ignored you.

 

Remember, judges don’t like terminating tenancies in manufactured housing communities, as it essentially forces the homeowner to vacate and sell their home (since the cost or ability to relocate it may be problematic based upon a lack of financial resources or the home’s age).

Also, when the resident is elderly and on a fixed income, most landlords and managers would prefer not to terminate his or her tenancy based upon, say, the condition of the home, preferring instead to wait until it is sold or inherited by a family member.

 

Lastly, think of it this way: Once you issue a 30-day notice to terminate a tenancy, what are you going to do if the resident ignores you? You really have no choice but to proceed with eviction. And until you do so, you cannot accept rent from the tenant beyond the last day of the termination period. So when issuing a 30-day notice of termination, you are drawing a line in the sand, and your options become more limited. Again, would you not rather be in court on a notice of termination after having given the tenant three form 47s that were ignored? That way the judge knows that you tried to work with the resident, and that he or she brought the termination upon themselves.