Phil Querin Q&A: Three Strikes vs. Thirty Day Notices 3 Strikes

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March 21, 2018
Phil Querin
MHCO Legal Counsel
Querin Law

Question:  If a manager is going to give a resident their third 72-hour notice within 12 months, does the manager give the 72-hour notice and then wait for payment, which if the resident pays then serve the 30 day three strikes notice?  

 

 

Answer:  There seems to be some confusion on what facts determine giving the 30-day notices and which are appropriate for three strikes.  Here is a brief primer:

 

Three Strikes:   Pursuant to ORS 90.630(8), a landlord may terminate a space rental agreement for a manufactured dwelling or floating home if:

  • The tenant has not paid the monthly rent prior to the eighth day of the month assuming rent is due on the first day of each month, and,
  • A 72-hour notice is issued[1] in at least three of the preceding 12 months; and
  • The landlord warns the tenant of the risk of a 30-day notice for termination with no right to correct the cause, upon the occurrence of a third nonpayment of rent termination notice within a 12-month period. This warning must be contained in at least two 72-hour notices that precede the third notice within the 12-month period (or in separate written notices that are given concurrently with, or a reasonable time after, each of the two preceding 72-hour notices); and
  • The 30-day notice of termination must state facts sufficient to notify the tenant of the cause for termination of the tenancy which is given to the tenant concurrent with, or after the third or a subsequent nonpayment of rent termination notice.[2]

Take-Aways.  

 

  • The MHCO 72-hour Notice (Form No. 42) already contains the warning about a non-curable 30-day notice for three strikes, i.e.  issuance of three 72-hour notices within the preceding twelve months. No separate warning needs to be given. All management needs to do is complete the form and identify whether it is the first, second, or third such notice.
  • Note: The purpose of the 3-strikes statute is to discourage serial late-paying.  The violation is not “cured” by paying the rent late after issuance of a 72-hour notice – in other words, it still counts toward issuance of a three strikes notice.
  • The 30-day Notice for a 3-Strikes Violation (Form No. 43A) should be given together with the third 72-hour notice; if it is mailed it can be in the same envelope or another one simultaneously sent. Always get a Certificate of Mailing when mailing the letter. Do not wait in sending out the 30-day notice! 
  • The 30-day 3-strikes notices is not “cured” by payment of the late rent.
  • Since there could potentially be a waiver argument if the landlord attempted to terminate for issuance of more than three 72-hour notices, it is recommended that if the tenant was issued more than three such notices within twelve months, the landlord select just three.
  • Caveat:  Each 72-hour notice must have been properly prepared.  If one of them has been defectively prepared (e.g. wrong date, time, etc.) or incorrectly served (e.g. improper posting and mailing, etc.) it will not count towards the three strikes. For this reason, it is suggested that legal counsel closely review each 72-hour notice that is intended to become the basis of a 3-strikes eviction.

Thirty-Day Notices:   Pursuant to ORS 90.630(1) – (7), a landlord may terminate a space rental agreement for a manufactured dwelling or floating home if a tenant:

  • Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740 (Tenant Obligations);
  • Violates a rule or rental agreement provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing;
  • Is classified as a level three sex offender under ORS 163A.100 (3); Note that this violation is not curable, and the 30-day notice must so state; or
  • Fails to pay a (i) Late charge pursuant to ORS 90.260; (ii) Fee pursuant to ORS 90.302; or (iii) Utility or service charge pursuant to ORS 90.534 or 90.536.
  • Note that for violation regarding the physical condition of the home, a 30-day notice does not arise under ORS 90.630; rather ORS 90.632 applies. Do not get the two types of events confused. Use MHCO Form No. 55 is to be used for repair and deterioration issues under ORS 90.632, and Form No. 43 is to be used for all other curable 30 day notices arising under ORS 90.630.
  • The 30-day notice must state facts sufficient to notify the tenant of the reasons for termination of the tenancy and state that the tenant may avoid termination by correcting the violation within the 30-day period.
  • If substantially the same act or omission that constituted the prior violation 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.
  • Note that notwithstanding issuance of a 30-day notice, management may issue a notice for nonpayment of rent under ORS 90.394. Caution: If the last day of a 30-day notice of termination is on, say the 15th of the month, the landlord’s 72-hour notice issued on the 8th day of that month should only demand rent up through the 15th.  If the 72-hour notice demands rent covering the period after the 15th, it could invalidate the 30-day notice since it demands that the tenant pay rent for a period of time beyond the official end of the tenancy. There is also a risk of incorrectly calculating the number of days in the 72-hoour notice. For these reasons, I do not recommend issuance of a 72-hour notice while a 30-day notice is pending.  And if the tenant voluntarily pays the rent while the notice is pending, I recommend immediately returning it, saying that the resident must first timely cure the default identified in the 30-day notice (assuming the default is curable).
 


[1] Or the fifth day of the rental period is a 144-day notice is used.

[2] I do not recommend waiting to issue the 30-day notice. It should be sent or delivered concurrently with the 3rd strike, i.e. the 3rd 72-hour notice.

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