Phil Querin Q&A - A Potpourri of Topics - Tips and Traps

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March 24, 2017
Phil Querin
Querin Law
MHCO Legal Counsel

 

 

Pet Issues. 

 

There is almost no greater issue that can create problems for landlords, than whether tenants can retain a pet they have brought into the community.  How can owners and managers take control of the issue?

 

First, landlords should check their current rules and rental agreement. Although landlords who have previously permitted pets in the community, cannot retroactively prohibit them to tenants who already have pets living with them.  Nor can they retroactively prohibit a type of pet that had previously been permitted.  However, going forward, i.e. for new tenants, landlords should make sure that their rules place appropriate limitations on the size and type of pets that can be brought into the park.  Rules should be drafted broadly to prohibit pets, e.g. breeds of dogs, that  have a reputation for aggressiveness, or dogs of a particular size, or both.

 

Secondly, consistency is important.  That is, landlords should be careful not to make exceptions or ignore violations of the pet rules.  Otherwise, the landlord will be accused of either being arbitrary or “playing favorites.”  Selective prosecution of tenants for violation of the pet rules does not play well with judges and juries. 

 

Lastly, in all cases, landlords should make sure that their tenants sign pet agreements for their animals.  Oregon law expressly permits this.  The MHCO agreement follows the statutory guidelines and assures that the tenant has liability insurance coverage.  It also permits landlords to  assess fines for violations of the rules. 

 

 

Evictions.  

 

Most evictions are either for failure to pay rent or violation of rules.  An eviction (formally known as a "forcible entry and detainer" or "FED") is an expedited legal procedure designed to allow landlords to obtain possession of their property through the court system.  Oregon does not require that landlords obtain an attorney in order to file an FED.  The necessary summons and complaint can be obtained from the courthouse and they can be filed and served quickly.  This has its advantages and disadvantages: It is good insofar as it keeps the cost of the process down, but it is bad if the owner or manager fails to strictly follow all of the legal procedures required by the statutes.  Accordingly, for the inexperienced manager or new owner, it is strongly, recommended that guidance first be sought, either through the MHCO, from an experienced attorney, or by consulting with a knowledgeable community management company.

 

Since the FED process is designed to be a "summary" or quick proceeding, the law imposes upon those seeking its assistance, i.e. owners and managers, the duty to strictly comply with all of the requirements set out in the statutes.  This means, for instance, that the written notice that must precede the filing of the complaint (e.g the 72-hour nonpayment of rent notice or the 30-day notice of termination for cause) must be properly filled out to the letter.  Since the notice is required to be attached to the FED complaint, and thereby becomes a part of it, if it is defective in any respect, the Court can unilaterally dismiss it - thus forcing the landlord or manager to start all over again.  It is for this reason that before actually filing the summons and complaint which starts the FED court process, the plaintiff should closely review the notice to make sure it complies with the law.

 

Leases & Rental Agreements.

 

As a result of  MHCO’s efforts in the recent Legislative Session, landlords will be able to use leases for two year terms or more.  At the end of the term, the tenant must either agree to a new updated lease as well as rules and regulations. Briefly, the process is as follows: Not more than 60 days prior to the termination of the lease, the landlord must provide the tenant with a copy of the new proposed lease and rules.  Thereafter, the tenant has 30 days within which to either agree to the new terms or to vacate and remove the home.  If the tenant declines to sign and elects to vacate, he/she can try to re-sell the home in the park for up to 12 months, so long as storage fees are paid. 

 

The one limitation on landlords – and not an unreasonable one – is that the new lease agreement or rules that the tenant may be asked to sign must be the substantially the same as those the landlord is currently offering others who are seeking to rent a space in the community.  

 

One caveat for landlords:  If they fail to offer the new rules and lease agreement to the tenant on or before 60 days prior to expiration of the current term, the lease turns into a month-to-month tenancy. 

 

Thus, the use of leases under the new law will now permit landlords to unilaterally update their rental agreements and rules.  We’ll be talking about this in depth at the Annual Convention.

 

Day Care Facilities.

 

Frequently, community managers are confronted with tenants who seek to open day care businesses in their home.  There are multiple issues involved here.  First, is it a violation of the existing zoning laws to use the home for a commercial business?  Secondly, will it impact the landlord’s insurance rates?  Lastly, what about increased traffic and risk of accidents?  All of these issues militate against permitting tenants to open such enterprises. 

 

Landlords should review their rules and regulations to make sure they have adequate limitations on day care businesses.  If they do not, consideration should be given to updating the rules to make the appropriate amendments.  However, for those landlords or managers whose rules do not address the issue, how is one to proceed?  Oregon law provides that violation of the law constitutes a breach for which a curable 30-day notice of termination may be given. Accordingly, the landlord or manager should first check the zoning law.  If it is a residential neighborhood, there may be zoning restrictions on such business enterprises.  Also, even if there is not current restriction, there is nothing illegal about instituting a restriction of day care facilities immediately.  Oregon law permits such rules, even if they make a material modification to the landlord-tenant relationship, so long as they are passed by the tenants in a legally adopted rule change (i.e. 51% or more do not object.)