Phil Querin Q&A: Community Documents - Can They Be Changed?

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May 19, 2015
Phil Querin
MHCO Legal Counsel
Querin Law

Question: Over the years Oregon rental laws change. When should I update my rental agreement to reflect those changes? Can I change my “Statement of Policy”? What about the community rules and regulations?

 

 

Answer:   All good questions. Let’s look at each document.

Changes to the Rules and Regulations. Pursuant to ORS 90.610(3), a landlord may propose changes in rules or regulations, including changes that make a substantial modification of the landlords bargain with a resident.  This is done by giving written notice of the proposed rule change, and unless residents of at least 51 percent of the eligible spaces in the facility object in writing within 30 days of the date the notice was served, the change shall become effective for all residents of those spaces on a date not less than 60 days after the date that the notice was served by the landlord.

 

One resident per eligible space may object to the rule change through either:

  • A signed and dated written communication to the landlord; or
  • A petition format that is signed and dated by residents of eligible spaces and that includes a copy of the proposed rule or regulation and a copy of the notice.

 

If a resident of an eligible space signs both a written communication to the landlord and a petition, or signs more than one written communication or petition, only the latest signature of the resident may be counted.

 

A proxy may be used only if a resident has a disability that prevents the resident from objecting to the rule or regulation change in writing.

 

The landlord’s notice of a proposed rule change must be given in the same manner as other notices. See, ORS 90.155 (Service or delivery of written notice) and must include:

  • Language of the existing rule or regulation and the language that would be added or deleted by the proposed rule or regulation change; and
  • A statement substantially following the text set forth in subsection 90.610(7)(b)in the following form, with all blank spaces in the notice to be filled in by the landlord:

 

Unless residents of at least 51 percent of the eligible spaces object, the proposed rule will go into effect on a date that is at least 60 days plus three additional days, if mailed regular first class mail, from the date of mailing.

 

There are additional provisions of the statute, so owners and managers contemplating a rule change should become familiar with all of them.

 

Changes to the Statement of Policy.  Every landlord who rents a space for a manufactured dwelling (or floating home) is required to provide a written statement of policy to prospective and existing residents. The purpose of the statement of policy is to provide disclosure of the landlord’s policies to prospective residents and to existing residents who have not previously received a statement of policy. The statement of policy is not a part of the rental agreement.

 

The statement of policy must contain the following information in summary form:

  • The location and approximate size of the space to be rented.
  • The federal fair-housing age classification and present zoning that affect the use of the rented space.
  • The community policy regarding rent adjustment and a rent history for the space to be rented. The rent history must, at a minimum, show the rent amounts on January 1 of each of the five preceding calendar years or during the length of the landlord’s ownership, leasing or subleasing of the facility, whichever period is shorter.
  • The personal property, services and facilities that are provided by the landlord.
  • The installation charges that are imposed by the landlord and the installation fees that are imposed by government agencies.
  • The community policy regarding rental agreement termination including, but not limited to, park closure.
  • The community policy regarding on-site sales.
  • The community policy regarding informal dispute resolution.
  • The utilities and services that are available, the name of the person furnishing them and the name of the person responsible for payment.
  • If a residents association exists, a one-page summary about the association. The residents association is required to provide the summary to the landlord.
  • Any community policy requiring removal of a home, including a statement that removal requirements may impact the market value of a home.
  • Any facility policy regarding the planting of trees on the rented space.

 

The rental agreement and rules and regulations are required to be attached as an exhibit to the statement of policy. If the recipient of the statement of policy is an existing resident, the rental agreement attached to the statement of policy must be a copy of the one entered by the landlord and resident.

 

Here are the delivery requirements:

 

  • Landlords are required to give prospective residents a copy of the statement of policy before the residents sign their rental agreement.
  • Existing residents who have not previously received a copy of the statement of policy and who are on month-to-month rental agreements must receive a copy of the statement of policy at the time of a 90-day notice of a rent increase is issued.
  • All other existing residents who have not previously received a copy of the statement of policy, a copy of the statement of policy upon the expiration of their rental agreements and before the residents sign new agreements. [Note: This provision refers to residents on fixed term leases.]

As you can see from the above discussion, the statement of policy statute makes no provision for amendment or change.  That isn’t to say it cannot be changed, however.  Assuming that your statement of policy only addresses the required policies listed above, it would be my suggestion that if one or more of those policies change, you should change your statement of policy accordingly, and reissue it to all of the residents. 

 

For example, assume that your community has held itself out as a family park under federal and state fair housing laws, but in fact, could qualify under the 80% rule as a 55+ park.  Under certain circumstances, by a rule change, it could convert to a 55+ community. In that case, you would want to change your statement of policy accordingly.

 

As for other changes, either due to Oregon law, or rule changes, if they are not on the required list of items to be addressed in the statement of policy, I see no reason to change the existing statement of policy.  However, if your statement of policy addresses additional items, and one or more of them are impacted by a change in Oregon law or the community rules, I would recommend amending your statement of policy accordingly.

 

Changes to the Rental Agreement or Lease. Pursuant to ORS 90.510(4) landlords are required to provide a written rental agreement to their residents.  It must be signed by the landlord and resident and may not be unilaterally amended by one of the parties to the contract except by:

 

The rental agreement must specify:

  • The location and approximate size of the rented space;
  • The federal fair-housing age classification;
  • The rent per month;
  • All personal property, services and facilities to be provided by the landlord;
  • All security deposits, fees and installation charges imposed by the landlord;
  • Any community policy regarding the planting of trees on the rented space;
  • Improvements that the resident may or must make to the rental space, including plant materials and landscaping;
  • Provisions for dealing with improvements to the rental space at the termination of the tenancy;
  • Any conditions the landlord applies in approving a purchaser of a home as a resident in the event the resident elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;
  • A provision that the resident may not sell the their home to a person who intends to leave it on the rental space until the landlord has accepted the person as a resident;
  • The term of the tenancy;
  • The process by which the rental agreement or rules and regulations may be changed; and
  • The process by which the landlord or resident shall give notices to each other.

 

Thus, for those residents in your community on periodic tenancies, e.g. month-to-month rental agreements, you may not change the terms of their contract except in the limited instances listed above.  Clearly, you may do so, if required by statute or ordinance. For the past several years, most changes to Oregon’s manufactured housing rental laws, provide whether the rental agreement may be “unilaterally amended” to accommodate the change.

 

Note that under ORS 90.545, Oregon law allows “fixed term tenancies” i.e. leases.  Under this law, it is much easier to change all three of the community documents.  Although leases may be not less than two years, at least 60 days prior to the end of the term, the landlord may give the resident a new set of community documents. Although there are certain restrictions found at subsection (3), they are not onerous.  Essentially, you are permitted to give existing residents on lease the same documents as you are currently giving new residents.  You do not have to follow the rule change statute, and do not need permission from the resident to change their rental agreement. The same thing applies to the statement of policy.  It is for this reason that I am a proponent of short term, e.g. two to five year leases; they allow landlords to update their community documents as the laws and regulations change.

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