Phil Querin Q&A: Dealing With a Failing Well in a Manufactured Home Community

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August 24, 2015
Phil Querin
MHCO Attorney
Querin Law

 

Question. We have a problem and I'm looking for guidance as to the proper way to handle it.  Our well is going dry.  Upon inspection, our well expert said we had only four feet of water. Although the system recovers overnight, there have been numerous occasions when the holding tank (2600 gallon capacity) is below 500 gallons.  Fortunately, our pump has a system that prevents it from overheating or working when no water is available.

 Our water system serves a community of 29 mobile homes and 41 RV spaces.  

I have issued two notices informing residents of the water problem and requesting that they voluntarily conserve water use.  Most have complied.  Although the park owner is currently working with the local municipality to get our park on city water, this may not happen soon enough to avoid a serious water crisis.  

I do not have the background to know what can legally be done to compel users to conserve.  Can you point me in the right direction?

Question. We have a problem and I'm looking for guidance as to the proper way to handle it.  Our well is going dry.  Upon inspection, our well expert said we had only four feet of water. Although the system recovers overnight, there have been numerous occasions when the holding tank (2600 gallon capacity) is below 500 gallons.  Fortunately, our pump has a system that prevents it from overheating or working when no water is available.

 Our water system serves a community of 29 mobile homes and 41 RV spaces.  

I have issued two notices informing residents of the water problem and requesting that they voluntarily conserve water use.  Most have complied.  Although the park owner is currently working with the local municipality to get our park on city water, this may not happen soon enough to avoid a serious water crisis.  

I do not have the background to know what can legally be done to compel users to conserve.  Can you point me in the right direction?

Answer. First, I will assume that you have confirmed the well is going dry – as opposed to other problems having to do with the pump.[1]   

90.730(2) (“Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition”) provides that community landlords have a duty to maintain the rented spaces, vacant spaces, and common areas in a “habitable condition”.  For purposes of your water supply, 90.730(3)(c) says a space is considered unhabitable if it substantially lacks a “…water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord.”

My reading of this means that even though your system is failing in terms of providing an adequate supply of water, the spaces for residents owning their homes, are not “unhabitable” so long as it is safe and in good working order to the extent you can control the system.

As to your RV residents, your duties are not defined by the manufactured housing section of the landlord-tenant law, but by the general landlord-tenant law. See, ORS 90.320(1)(c). This statute imposes essentially the same obligation as that is contained in ORS 90.730.

One caveat:  Your habitability obligation is subject to the extent you can control the water supply system. While you cannot “control” a failing well, you can explore the feasibility of (a) digging a new well, (b) digging the existing well deeper, or (c) making sure the water problem  is not due to problems with the pump.[2] I can’t tell from your question whether you’ve explored those possibilities.

Assuming that you are unable to do either (a) or (b), due to the current condition of the underground aquifers, or financial constraints, and (c) is not the problem, then it appears your only alternative is to continue working with the municipality to bring in city water – and hope a crisis can be avoided.

This brings me to your question, i.e. what can you do to “compel users to conserve”?  Under the Oregon landlord-tenant law, I believe your options are limited. You could institute a water conservation regime for those owning their manufactured home through a rule change[3] – assuming not over 51% objected, and assess fines for the scofflaws.  For RV tenants, you may institute the change anytime, although I suggest not less than 30-day notice.[4]  Of course, enforcing this, would be difficult, since it would turn neighbor vs. neighbor.[5]

On the other hand, the threat of fines, may be sufficient to compel voluntary compliance. Education is the first step, i.e. making sure that everyone is water conscious. This would include providing information to residents about detecting and repairing leaks, and installing water saving devices.

Lastly, you need to prioritize your conservation efforts.  Here is what I mean:

  • RV tenants who come into the park should be informed of the situation, and told that if they don’t conserve, they will be asked to leave with a 30-day notice. Before accepting them as tenants, you could require that they certify they have no leaks, and that they have installed certain water saving devices. In other words, the certification would be required as a condition of occupancy.
  • Existing RV tenants already in the park who have been residents less than one year, can also be informed of the need to conserve, or they will be asked to leave with a 30-day notice. They too could be asked to certify they have undertaken the above-referenced conservation efforts.
  • Existing RV tenants who have resided in the park over one year, should be informed of the need to conserve, or they will be asked to leave with a 60-day notice. They too could be asked to certify they have undertaken the above-referenced conservation efforts.
  • For manufactured home tenants who come into the park, they should be informed of the situation and asked to certify they have no leaks, and that they have installed certain water saving devices.

For existing manufactured home tenants, you can ask, but can’t require (short of a rule change) that they conserve, and certify having done  so.

If the problem appears to be getting worse and residents leave, you should consider not filling the space – especially owners of manufactured homes – until you can get on city water.

 


[1] For a discussion of well water problems, see: http://wellwater.engr.oregonstate.edu/well-going-dry.

[2] I’m not an expert in this area of the law, so am limited as to what your viable options are. These issues are better left to your well driller and other experts in the area.

[4] The statute, ORS 90.262 allows rule changes “from time to time” which tells me you do not need advance notice. However, if some existing residents believed it worked a substantial modification of their bargain, they could object.

[5] Assessment of a fine should clarify that it is not a “charge” for the use of the extra water, but a “fine” for violation of the rule. The reason is that ORS 90.532(9) states that a landlord may not assess a utility or service charge for water unless the water is provided to the landlord by a: (a) Public utility; (b) Municipal utility; (c) People’s utility district;  (d) Cooperative; (e) Domestic water supply district; or (f) Water improvement district. Thus, since your water comes from a well, you must avoid the appearance of assessing a “charge” for the excess water use.

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