Phil Querin Q&A: Street Lights - Adding and Maintaining

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September 20, 2016
Phil Querin
MHCO Legal Counsel
Querin Law

 

Questions. We want to add street lighting to a section of our community that has none. The light poles will need to be placed on several of the spaces. Can we install these on the space without resident permission? Is a 24 hour notice sufficient notice?  What do you suggest? Secondly, we also want to repair broken street lights that are on a number of resident spaces. Can we go on the space with a 24 hour notice? What if the resident objects?
 

 

Answer.  Here is a quick summary of ORS 90.725, the access statute for manufactured housing communities; it is quite long and complicated.

 

A landlord or a landlord’s agent may enter onto a rented space, not including the tenant’s manufactured dwelling or floating home or an accessory building or structure, in order

  • to inspect
  • to make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, perform agreed yard maintenance, equipment servicing or grounds keeping or exhibit the space to prospective or actual purchasers of the facility, mortgagees, tenants, workers or contractors.

 

The right of access of the landlord or landlord’s agent is limited as follows:

  • serving notices
  • emergency
  • tenant requested repairs or maintenance
  • per written yard maintenance agreement requires the landlord to perform yard maintenance, equipment servicing or grounds keeping for the space:

 

In all other cases, unless there is an agreement between the landlord and the tenant to the contrary regarding a specific entry, the landlord shall give the tenant at least 24 hours’ actual notice of the intent of the landlord to enter and the landlord or landlord’s agent may enter only at reasonable times. The landlord or landlord’s agent may not enter if the tenant, after receiving the landlord’s notice, denies consent to enter. The tenant must assert this denial of consent by giving actual notice of the denial to the landlord or the landlord’s agent prior to, or at the time of, the attempt by the landlord or landlord’s agent to enter.

 

A landlord shall not abuse the right of access or use it to harass the tenant. A tenant shall not unreasonably withhold consent from the landlord to enter.

 

A landlord has no other right of access except:

  • pursuant to court order;
  • as permitted by ORS 90.410 (2) (Tenant’s failure to give notice of absence);
  • as permitted under ORS 90.539 (Entry to read submeter); or
  • when the tenant has abandoned or relinquished the premises.

 

If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement pursuant to ORS 90.630 (1) and take possession in the manner provided in ORS 105.105 to 105.168. In addition, the landlord may recover actual damages.

 

If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but that have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the reoccurrence of the conduct or may terminate the rental agreement pursuant to ORS 90.620 (1) (Termination by tenant). In addition, the tenant may recover actual damages not less than an amount equal to one month’s rent.

 

Based upon the above, it is my opinion that if you give 24 hour advance notice, you may install the lighting as a necessary safety feature for all residents. The same applies to repair of the lighting. However, here’s the conundrum. If you ask for “permission” to install the new lighting, it could be denied, and then you have to go to court for permission. So rather than asking for “permission”, I suggest you confer with the affected tenants and work with them on the access, i.e. presume you have the right to do so, and collaborate with the resident on timing, etc. Their main concern will likely be whether it will flood their house with light at night. You need to be sensitive to that issue.

 

Tips: When giving the 24-hour access (MHCO Form 51), it is sufficient if you give it at least 24 hours in advance covering a particular period of time. I don’t recommend just 24 hours; if you know the installer will be out on October 10, don’t give the notice on October 9. Give as much advance notice as possible. Secondly, if the installer will take three days to complete the job, you don’t have to give 24-hours’ notice each day they return. If you understand it will be a three day job, add a couple more for Murphy’s law, and then give a notice saying something to the effect that “Commencing on XXX date and continuing until YYY day, ABC company will be at your space (No. ___) between the hours of ______ AM and ______ PM [times must be reasonable - PCQ] to install new safety lighting for the community.” And presumably, since you’ve already addressed tenant concerns, that should suffice, and the advance collaboration will reduce the chance of push-back. Good luck!