Phil Querin Q&A - Deterioration/Repair Notices and Makeshift Structures

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May 10, 2017
Phil Querin
MHCO Legal Counsel
Querin Law

Question: My question is about which notice for my situation, a 30-day for cause or a deterioration & repair notices.  A long term resident has constructed a few different makeshift structures including a shed carport/garage and an add-on room attached to his home.  All of these have been in place more than 12 months but past park ownership didn't mind.  All of the structures were built without permission, contrary to his rental agreement, and without building permits from the city (also contrary to his rental agreement) and none of the structures conform to local building code that requires permits.    We are not requesting that the resident re-build the structures during a specific time frame - we want the structures removed.  Because these structures have been in place for more than 12 months do we need to give him a deterioration notice allowing up to a 6 months extension for them to be removed or can/should we give him a 30-day for cause notice?   

Answer.  This is not an issue under ORS 90.632, which relates to damage and deterioration of the home.  In fact, this statute indirectly validates the right of the structures to be on the space, which you are contesting, since portions were built without permission, in violation of local ordinances, and contrary to the terms of the rental agreement. Moreover, ORS 90.632 does not allow the landlord to require removal – just repair

 

This is a violation for which you would normally use a 30-day curable notice of termination.  ORS 90.630(1)(a) (Termination by landlord; causes; notice; cure; repeated nonpayment of rent), which provides for the issuance of a 30-day termination notice if the resident:

 

  • Violates a law or ordinance related to the tenant’s conduct as a tenant;
  • Violates a rule or rental agreement provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy.

 

Subsection (4) provides that:

 

The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in subsection (1) of this section. However, if substantially the same act or omission that constituted a prior violation of which notice was given recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days written notice specifying the violation and the date of termination of the tenancy.

 

However, in this particular case, the issue is whether you (and your predecessor) waived the right to terminate the tenancy because you accepted rent after you had knowledge of the violation. In summary, a landlord waives the right to terminate a rental agreement for a particular violation of the rental agreement or of law if the landlord:

  • During three or more separate rental periods, accepts rent with knowledge of the violation by the tenant; or
  • Accepts performance by a tenant that varies from the terms of the rental agreement.[1]
  • A landlord does not waive the right to terminate a rental agreement for a violation under any of the following circumstances:
    • The landlord and tenant agree otherwise after the violation has occurred.
    • The violation concerns the tenant’s conduct and, following the violation but prior to acceptance of rent for three rental periods or performance, the landlord gives a written warning notice to the tenant regarding the violation that:
      • Describes specifically the conduct that constitutes the violation, either as a separate and distinct violation, a series or group of violations or a continuous or ongoing violation;
      • States that the tenant is required to discontinue the conduct or correct the violation; and
      • States that a reoccurrence of the conduct that constitutes a violation may result in a termination of the tenancy pursuant to ORS 90.392 (termination of non-MHP tenancies), 90.398 (termination for drug/alcohol violations), 90.405 (unpermitted pets), 90.630 (termination of MHP tenancy by landlord).
    • The tenancy consists of rented space for a manufactured dwelling or floating home, and the violation concerns:
      • Disrepair or deterioration of the manufactured dwelling or floating home;
      • A failure to maintain the rented space;
      • The termination is under ORS 90.396 [24-hour notices].

 

I do not believe any of the above exclusions apply to your situation, and on its face, there is an argument that by accepting the rent you permitted the structures to be there. See, ORS 90.412 and ORS 90.414

 

However, permitting the structures, and permitting their violation of the building codes, etc., are two different things. You don’t have the power to permit the law violations. I view the violations of the building codes as something that is a “continuing violation”, and something you can likely still treat as a violation. For a continuous or ongoing violation, the landlord’s written warning notice remains effective for 12 months and may be renewed with a new warning notice before the end of the 12 months. 

 

You should issue a warning notice, identifying the various code violation, (e.g. work done without permits and work done not to code). Then give the tenant a fixed period to go obtain the necessary permits and provide proof that the work was done to code. The “proof” would be through the building department who would inspect and pass.

 

Note: you have to be careful that whoever the resident uses (they should be CCB licensed and bonded) knows that you are not responsible for payment of any construction liens for unpaid work.

 

If you cannot get compliance with the warning notice, then give him a 30-day curable notice under ORS 90.630, identifying the violations relating to the failure to get the work permitted and not complying with the building code. Give him a fixed period to complete, e.g. 30 – 45 days, during which time you should not accept any rent. If he does not comply, then you could file your eviction.

 

Alternatively, if you can do so, you may consider speaking with the resident about voluntarily removing the structures. However, if push came to shove, they were approved long ago, so I think it would be a difficult argument to now use the existence of the structures as the basis of a 30-day notice of termination under ORS 90.630. If you can reach agreement, fine. If not, the continuing violation of the code violations are your best bet under ORS 90.630.  Be sure to confer with your own legal counsel before proceeding, however.

 


[1] However, a landlord has not “accepted rent” if within 10 days after receipt, the landlord refunds the rent, or the rent payment is made in the form of a check that is dishonored.