By: Phillip C. Querin, MHCO Legal Counsel
The difference between a well-run manufactured housing community and one with problems frequently lies with the rules and regulations each facility has adopted. Here are some tips for developing a set of rules and regulations that may be helpful in the successful operation of your community:
- Avoid Ambiguity. When writing a rule, make sure that it is understandable. If a court or jury were called upon to enforce it, would they be able to understand it? Is it fair? Is the rule capable of different interpretations? Is it too vague so as to give little or no guidance to the tenant? Avoid using general terms which are so subjective that reasonable people could differ about what constitutes a violation. If necessary, use an example. If the rule must necessarily be open-ended (e.g. prohibiting loud and disturbing noise or offensive behavior), tie the violation to whether the conduct results in complaints from other tenants. That way the issue does not become whether the manager is arbitrarily exercising his or her own discretion.
- Updating the Rules. Oregon landlord-tenant statutes can change every yerar when the Legislature meets. Circumstances and needs can change more frequently than that. At least once a year, take a look at your rules to see if they are legally sufficient and whether they meet the community's present needs. It is much easier to make smaller changes to the rules one or two at a time rather than trying to get the tenants to agree to a wholesale change of all the rules at once. If your tenants are on leases, you have the right to submit new park documents (i.e. rules and rental agreement) not less than 60 days prior to the expiration of the lease term. A tenant shall accept or reject the landlord's proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord. If accepted, the rules and rental agreement will define your new rental relationship with the tenants. It is one good way to update your rules, without having to go through a formal rules change.
- Legally Adopting Your Rules. If the tenants are on month-to-month tenancies, Oregon law requires that the landlord must give at least 30 days' advance written notice to make a change in the rules. If 51% or more of the tenants affected by the rule change object within the 30 days of service of the notice, the change(s) will not go into effect. However, if less than 51% object, the new rule(s) will become effective in 60 days from the date the notice was served on the tenants. The law regarding the contents and timing of the notice of rule change must be strictly followed. ORS 90.610 describes the process. Read it carefully! And use MHCO Form 60: "Sixty Day Notice of Rule Change". Simply sending a letter to the tenants informing them of a change in the rules is insufficient. If the rules are not properly adopted they will not be enforceable. Frequently, the landlord or manager will first learn that their rules were improperly adopted when they try to enforce them. If one or more of the rules you seek to adopt are opposed by a small but vocal minority who lobby the rest of the tenants against your change, consider meeting with them prior to giving notice of the proposed change, in an effort to mutually draft language that everyone would find acceptable. If over 51% of the effected space still object, consider implementing the new rules for all new incoming tenants only. That way, over time, the new rules will have wider and wider application as the older tenants
- Keeping Track of Your Rules. If there are more than one set of rules (i.e. old rules for existing tenants and new rules that are given to new tenants) make sure you keep track of which rules apply to which tenant. Put copies of the applicable rules, together with the rental agreement and statement of policy, in each tenant's file. Attempting to enforce the wrong rules against a tenant can result in disaster. Show the date of the latest revision on the first page or, better yet, on the footer of each page.
- Troublesome Issues. There are some issues that seem to never go away. Occupancy issues are one of those troublesome areas that frequently result in litigation. If your community has rules limiting the time a visitor can stay, make sure it is clear and unambiguous. Frequently tenants try to avoid these limits by calling their visitor a "house-sitter." The best approach is to set a definite date, e.g. two weeks, and require that all persons who remain over that period of time must satisfy the same requirements as imposed on incoming tenants - e.g. background check, criminal check, references, etc. Require that they sign the rental agreement. If the existing tenant attempts to get around these occupancy rules by arguing that the person is there to provide necessary assistance because of certain physical or emotional disabilities, legal counsel should be immediately consulted due to Fair Housing implications.
- Consistent Enforcement. It is not uncommon for landlords and managers to grant exceptions and extensions of time for tenants to come into compliance with a particular violation. However, landlords can get into trouble when they ignore some violators and enforce the rules against others. Maintenance violations are a good example. In order to enforce these rules you must be consistent. Regular community inspections should be made. Warnings should be given uniformly to all violators. Thirty day notices should be given only as a last resort. If the tenant requests an extension of time to comply, put the agreement in writing. In those cases where legal action may need to be taken, make sure legal counsel reviews the case before filing the eviction. Make sure your attorney is aware of your prior efforts to secure the tenant's compliance. It is always best if the tenant's file shows a clear paper-trail of your efforts to secure voluntary compliance.
Rules and regulations are not foolproof. Some tenants will always try to find reasons why they do not apply to them. But clarity, consistency, and fair enforcement will go a long way in keeping peace and harmony in your manufactured housing community.