By: Phil Querin, MHCO Legal Counsel
Always Assume The Matter Will Go To Court
While most legal notices will have their desired effect – e.g. the tenant will pay the rent, or maintain the space, or do what is necessary to comply – there are a small number of tenants who will fight. Of those who fight, some will secure an attorney. Most attorneys know that the easiest way to win is to attack the notice for some deficiency. If the notice is legally insufficient, the landlord’s case will fail without any examination of the merits of the case. The failure to win in court oftentimes leaves management with an unmanageable tenant.
Accordingly, when landlords and managers prepare notices, they should alwaysassume that the notice will be contested. This approach is the best protection landlords have in securing compliance in those cases where the tenant decides to fight.
What does it mean to draft a notice as if the matter will go to court? It means that someone – the judge or jury - will be scrutinizing the document. It means making sure that everything is filled out correctly before mailing or delivering it. It means using a form, if one is available, rather than hand-drafting a notice. It means making sure that the proper form is used. In some circumstances, it may mean having your attorney review the form beforesending it out.
Always Use A Calendar
Virtually all legal notices in the landlord-tenant law give a certain number of days (or hours) for compliance. If a 30-day notice is mailed, three additional days must be added. This means that the deadline for compliance is at least 33 days. However, landlords and managers frequently count the day of mailing toward the 33 days. This is incorrect. Additionally, the 33d day is frequently identified as the deadline, when it should be the day afterthe 33d day. When notices are sent in the month of February, the 33-day calculation can get confusing, since there are only 28 days – or 29 in the case of leap years. Rather than trying to do it in your head, it is far better to physically count the number of days on a calendar. Don’t do it once. Count out the necessary number of days at least three times, just to make sure that you’ve gotten it right.
Don’t Cut Deadlines Too Close
Frequently, landlords and managers give only the minimal number of days for compliance. This can be dangerous. While the court will always throw out a notice that is too short, it cannot throw one out that is too long. Since the risk of error is so high in the calculation of the necessary number of days, it is always prudent to give a couple of extra days, just to be safe. Rather than giving just 33 days on mailed 30-day notices, give 35. The statute governing the calculation of days can be confusing. Rather than trying to remember each rule, it is far better to simply add a couple of extra days, in order to avoid the risk of miscalculation.
Avoid All Ambiguity
For all maintenance and repair notices, be as specific as possible. Assume that a judge or jury will be looking at it. Assume that they know nothing about the problem. Will they be able to understand it? For example, saying “Clean up your yard” will not be understood by a judge or jury to mean “Mow and edge the lawn, and remove the weeds and blackberry bushes.” While tenants may know, in their heart of hearts, exactly what the landlord is referring to when he says “Clean up your yard,” by the time the matter gets into court, the tenant’s attorney will argue that the notice was so vague as to make compliance impossible.
On disrepair notices, landlords and managers should be sure to tell the tenant exactly what is wrong with the home and exactly what is necessary to remedy it. To say “fix the steps” will be argued as too vague. This cannot be said of a notice that says “repair or replace the broken steps and handrail located along the side of the sundeck behind the house.”
Use Current MHCO Forms
Most forms have a copyright date at the bottom. Remember that the Oregon Legislature meets every two years and that a session never goes by without some changes being made to the landlord-tenant laws. There is a good chance that a 1996 form will not legally comply with those laws generated during the 2001 Legislative Session. Accordingly, if you have a form that is copyright dated before the latest legislative year, you should check to find out if it is still current.
Make Sure You’re Using the Right Form
While this seems obvious, errors can occur. This is especially true when sending out notices to repair a home due to damage or deterioration. ORS 90.632 expressly governs this situation. There is a special form that must be used. The law requires that the form must contain specific notice to the tenant regarding their rights to obtain an extension of time for compliance if certain repairs, such as painting, are required by the landlord. Landlords and managers frequently confuse damage and deterioration situations with failure to maintain issues. If a house is in need of paint or the skirting is rusted and broken, a notice under ORS 90.632 must be issued, since this deals with damage or deterioration. However, this is not so, if the problem is simply maintenance, such as debris in the yard, or the home needs to be power-washed.
Be Careful Using 24-Hour Notices
While there are several good reasons to use a 24-hour notice, before issuing one, you should first ask two questions: (a) Is the conduct expressly prohibited by the park rules, and (b) is it of such a magnitude that it jeopardizes the health and safety of the tenants or managers in the park. If the violation is a breach of the rules, but is nota health or safety issue, it is better to give a 30-day notice for a rules violation. Here’s why: 24-hour notices are not curable. This means that the court will be faced with having to kick someone out of their home. If there is any doubt whatsoever, the judge or jury will normally come down on the side of the tenant. However, a 30-day notice is curable. If the conduct stops, there is no further issue for the landlord. If it is repeated within six months of the date of the 30-day notice, the landlord may issue a 20-day non-curable notice. If the landlord must file an eviction based upon the tenant’s failure to vacate after the issuance of a 20-day notice, the judge or jury will know that the tenant was first given an opportunity to avoid termination of the tenancy but they ignored it.
Only Use Notices of Termination As A Last Resort
Several changes ushered in by the 2001 Legislative Session make it easier for landlords and managers to first seek voluntary compliance from a tenant before issuing notices of termination. The waiver statute is not as harsh as it once was. Additionally, since informal notices are not intended to be the basis of an eviction action, they do not need to be in any particular form. They can be mailed or hand delivered without the necessity of counting days. They do not have to threaten termination of the tenancy. They do not need to have a fixed deadline for compliance. They can say “please.” Perhaps most important, they make management look better, since they show that the landlord or manager “walked the extra mile” with the tenant, rather than simply terminating the tenancy. Most landlord attorneys would prefer to be in court with a tenant’s file that is thick with requests for voluntary compliance. By the time a legal notice of termination is sent, it should say to the judge or jury “this was the landlord’s last resort.”
Only Use Notices Of Termination If You Mean It
Landlords and managers who issue notices without enforcing them create the appearance they are “crying wolf.” If a notice is issued, say for failure to maintain the yard, but no enforcement occurs upon noncompliance, the notice loses importance. If this occurs park-wide, the minute an eviction is filed based upon a particular tenant’s refusal to comply, the argument occurs that management is engaging in “selective enforcement,” since it had never done it before. Consistent with the “last resort” approach, discussed above, landlords and managers should reserve the legal notice of termination only for those cases in which they intend to follow through.
While legal notices of termination are a necessary precondition to filing an eviction, they can also prove to be management’s undoing, if not properly used. They should be reserved for those cases in which the landlord or manager has no other viable alternative, and when used, they mustbe properly prepared. Indiscriminate use or sloppy preparation of notices of termination will do management more harm than good.