Answer: At the risk of dating myself, I represented MHCO many moons ago when Oregon’s abandonment law was first being negotiated. One of the other representatives, John VanLandingham, did an excellent job not only on behalf of the tenant coalition, but also in riding herd over the group and drafting the text which ultimately was enacted into law.
There were at least four industry groups at the table representing the following interests[2]: (a) Tenants; (b) MH Lenders; (c) Landlords; and (d) Personal property tax assessors. Because of the size of the stakeholders, and their disparate interests, the result, ORS 90.675 and ORS 90.425,[3] are lengthy and complicated statutes – akin to reading War and Peace.
Background.
Before answering the above question, we must first address some basic concepts:[4]
- When a tenant or tenants abandon the home, it must be clear they are doing so with no intent to return. This is because once the abandonment is legally declared by the landlord, other interests become superior to those of the abandoning tenant(s).
- Before the abandonment can be declared, a 45-day letter must be issued to certain designated parties. If the abandoning tenant(s) receipt for or learn of the 45-day letter and timely respond, they have certain rights to protect their ownership of the home. If they do not timely respond, the tenant(s)’ interest is declared abandoned. Any known lienholders, including the personal property tax assessor, must also be notified, and given an opportunity to inform the landlord of their interest.
- Once the abandonment has been legally declared because the tenant(s) did not timely respond, interests of the remaining stakeholders, landlord, lender and personal property tax assessor, come to the fore – and all have to be coordinated going forward. If they do not timely respond their interests are also deemed to be abandoned.
- If the tax assessment of the home is $8,000 or less the landlord may dispose or sell the home and it will be removed from the community.
- If the tax assessment is over $8,000, there is a statutory process describing how the home will be advertised for sale and sold to a new tenant who will occupy it or remove it from the community. If the sale proceeds are in excess of the landlord’s costs of the abandonment, recovery of unpaid space rent, and repayment of the lien, if any, the balance must be repaid to the abandoning tenant(s) if they can be located. Otherwise, the proceeds escheat to the state.
- Lastly, and significantly, the law provides that during this lengthy abandonment process, the landlord must secure and protect them home. This is because after removal of perishables and pets, there could be personal property inside with monetary or sentimental value. Thus, immediately upon issuing the abandonment letter, my advice to most landlords is to immediately secure the home by changing the locks and, if necessary, post No Trespassing signs on it. This is because if the abandoned home is accessed by anyone – even friends and relatives – things can disappear, and a claim could be made against the landlord by the persons who claim ownership or an interest in the personal property. This is not to say the landlord should deny access to everyone, but it must be controlled and supervised.
Death of the Tenant Living Alone.
ORS 90.675(21) and ORS 90.425(20) address what happens when the only tenant, who is the owner of the home, dies.
The relationship of death and abandonment, albeit far different in actuality, result in the same issues, i.e., how to address and protect the interests of the remaining stakeholders, plus, the estate of the decedent.
In my experience, which I am sure does not differ from that of other MHP lawyers and landlords, is that following a tenant’s death, unless the landlord immediately declares the abandonment so he/she can safeguard and prevent uncontrolled access to decedent’s home, there are a parade of horribles that can occur. Battling siblings can – and do – obtain access to the home and “retrieve” what they believe is rightfully theirs; friends and relatives can do the same; and others, e.g., the long-lost friend or relative who had been absent over the years, materializes to access the home and remove items. Lastly, and not uncommonly, is one or more shirttail relatives, friends, or acquaintances, begin living in the home. If the person(s) refuse(s) to leave, the landlord is forced to file for eviction to recover possession and control of the home during the abandonment process.
In some cases, the tenant’s death may necessitate a small estate probate to effectuate the legal transfer of title. In that case, and others, the rightful party, e.g., the .personal representative, must decide whether to hold on to the asset for the estate – which entails paying storage fees for the home. If fees are not paid, the home can become subject to a loss of rights to the estate.
Conclusion. While death of the tenant living alone presents more emotional issues than a voluntary abandonment, the process following both events are very similar – because third parties are left to protect their interests.
Although Oregon’s abandonment law has been amended from time-to-time over the years, it has withstood the test of time. So, while both statutes are voluminous and complicated, they have successfully balanced the disparate interests of all the stakeholders affected by the process. It is a delicate balance, but it does work.
[1] This wording is imprecise. The law correctly addresses events following the death of a tenant when there are not other “tenants” as defined in ORS 90.100 (47).
[2] I say “at least” because within these major groups were various collateral interests represented.
[3] ORS 90.675 deals with homes located in manufactured housing communities; ORS 90.425 addresses those located outside of such communities, i.e., on private parcels of land.
[4] This summary is not “legal advice.” It is intended as a general description of the process in broad strokes. For details, the statutes must be reviewed and understood before proceeding.
