Phil Querin Q&A: Push Back from Resident on Interior and Exterior Inspection of Home

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March 30, 2017
Phil Querin
MHCO Legal Counsel
Querin Law

Question.  I am getting push back from a resident in our Park who says that I cannot enforce Section 8 in MHCO Form No 11 (Ten Day Notice of Intent to Sell Manufactured Home) relating to the requirement that the selling resident must provide us with a “….copy of a current written inspection report from an Oregon-certified and licensed home inspector, verifying that as of the date of the inspection:

  • the dwelling, including, but not limited to all heating, cooling, and electrical systems and all appliances located therein, are safe from the hazards of fire;
  • the dwelling has a smoke alarm approved under applicable law;
  • the dwelling has operable storm water drains on the roof;
  • all electrical, water, storm water drainage and sewage disposal systems in, on, or about the dwelling, are in operable and safe condition, and that the connections to those systems have been maintained, and
  • that any modifications to the home or its heating, cooling or electrical systems comply with all local, state and federal codes and regulations in existence at the time of the modification.”

 

Section 8 also provides that “The cost of this inspection shall be the responsibility of the TENANT, but may be negotiated with the prospective purchaser as part of the sale transaction.”

 

 

Answer. I remember writing this provision several years ago, and it has survived the test of time – in other words – to my knowledge it has never been set aside or otherwise ruled illegal or unconscionable by any Oregon courts.

 

The genesis of this provision relates to the change in Oregon law several years ago that prohibited landlords from imposing a “removal on resale” condition when consenting to the sale of older homes in their communities. Essentially, the condition said that if when the resident sought to sell the home to a new buyer, the landlord could consent, but could add the condition that the home had to be removed on resale. In theory, this was designed to permit landlords to incrementally upgrade the age of the homes in their communities.[1]

 

The law, prohibiting this practice, is found in ORS 90.680(12) which provides that:

 

A landlord may not, because of the age, size, style or original construction material of the dwelling or home or because the dwelling or home was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code as defined in ORS 455.010:

      (a) Reject an application for tenancy from a prospective purchaser of an existing dwelling or home on a rented space within a facility; or

      (b) Require a prospective purchaser of an existing dwelling or home on a rented space within a facility to remove the dwelling or home from the rented space.

 

 

 

 

The quid pro quo for landlords permitting this legislation was twofold:

 

  • A law that expressly allowed landlords to impose maintenance requirements to the exterior of homes (ORS 90.632);
  • A law providing that the failure to enforce the maintenance provision did not constitute a waiver of the right to do so in the future. See, ORS 90.414(1)(c).[2]

 

While these laws worked well for the exterior of older homes, they did not address the interior, where typically, landlords could impose no updating requirements. However, ORS 90.740 (Tenant Obligations), provided for several things I believed we could incorporate into the MHCO Rental and Lease Agreements. Among other things, the statute provides that residents must:

 

  • Keep the dwelling or home, and the rented space, safe from the hazards of fire;
  • Install and maintain in the dwelling or home a smoke alarm approved under applicable law;
  • Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;
  • Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

 

And since ORS 90.630(1)(a) provides that “…the landlord may terminate a rental agreement *** if the tenant: (a) Violates a law or ordinance related to the tenant’s conduct as a tenant…” I felt it was not unreasonable to require that if the resident made any modifications to the home or its heating, cooling or electrical systems, they must comply with all local, state and federal codes and regulations in existence at the time of the modification.”

 

I then consulted with one or more professional inspectors who specialize in manufactured homes, to ask if they could inspect the interior of the home and vet these issues. I was assured they could.

 

Lest your resident argue that neither they, nor their buyer, wants to pay for this, I would respond that this requirement is not just for their safety, but the rest of the Park’s residents. If the home should catch fire, the conflagration could endanger others as well as them.

 

Lastly, it is my position, which I have vetted with others, that notwithstanding the ORS 90.680(12) proscription against imposing a “removal on resale” condition, it does not apply if the resident has made changes “…to the original construction material of the dwelling or home *** [that] was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code….” 

 

In other words, it is my belief[3] that if a resident has made changes to the heating, cooling, or electrical systems inside their home, he or she is no longer protected against the prohibition against “removal on resale” condition. So your recalcitrant resident has two choices: (a) Either consent to the interior inspection by a professional, to make sure it is “safe from the hazards of fire” or (b) You can impose a “removal on resale” requirement. And by the way, since you can impose, as a condition of approval, that the new resident has fire and liability insurance, you will want to consider imposing both conditions, and becoming a co-insured on the liability policy.   Good Luck!

 

 

 

 

 

 

   

 

 


[1] Tenant lawyers argued that the provision was illegal, since it violated the law prohibiting termination of MHP tenancies without cause. It was the result of this standoff that resulted in the compromise legislation.

[2] When these laws were being negotiated, non-waiver was important to several landlords who had fixed income elderly residents whose homes were in need of exterior maintenance or painting. While they were willing to forego enforcing the maintenance requirements so long as the aged resident was living there, they did not want to waive the right to do so later, if the home was sold, or transferred by inheritance.

[3] You should verify this with your own legal counsel. MHCO’s Q&A articles should not be relied upon as “legal advice”. 

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