Bill Miner Q&A on New Mediation Laws - 7 Questions (Part II)

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Bill Miner

Introduction and Background (Part 2 of 2)

As previously mentioned last week, SB 586 was developed by the Manufactured Housing Landlord/Tenant Coalition during 19 meetings (each of approximately 3 hours) from September 2017 through February, 2019. There are several pieces to SB 586; however, this Q&A focuses on the limited mandatory mediation policy together with the $100,000 annual grant the Legislature has authorized be allocated to the Oregon Law Center to assist manufactured and floating home tenants with understanding and enforcing the Oregon Residential and Landlord Tenant Act.

As was reported by Chuck Carpenter during the Legislative session, the goal from MHCO’s perspective, was to use the coalition to get the best possible result considering the political landscape in the Legislature. Bluntly, some of the original ideas proposed by the tenants in the coalition were quite onerous. The end result, however, is a true compromise that is favorable to MHCO landlords, all things considered.

If you would like to learn more about these issues and/or you have particular questions, please join me for my presentation at the 2019 Annual Conference in October. In the meantime here are 17 questions (10 questions were uploaded on 9/4/19.  The remaining 7 were uploaded 9/10/19) and answers that will get you started.

Can a tenant request a mediation after I send them a termination of tenancy notice?

Mediation can be requested after a notice terminating tenancy has been sent to a tenant, but only if the request is made to MMCRC or a designated mediator and a written confirmation of that request is delivered to you (the landlord) beforethe landlord files an action for possession under ORS 105.110. If the tenant delivers a notice requesting mediation before a landlord files an eviction action, the landlord may not file such action until after the mediation process concludes. If a landlord delivers a notice requesting mediation before a tenant files an action regarding a dispute, the tenant may not file such action until after the mediation process ends


Can I still accept rent during the mediation process?  YesNotwithstanding ORS 90.412, acceptance of rent or performance by a landlord after either party requests mediation and during the mediation process does not constitute waiver of the landlord’s right to terminate a tenancy following the mediation. Acceptance of rent or performance after the mediation process ends may constitute waiver. Additionally, all statutes of limitations are suspended during the mediation process. 


What happens after the mediation? If a mediation is successful, the parties should come to an agreement that resolves the dispute. The question is how enforceable is the agreement. Enforceability will depend upon the issues involved, the terms and how the agreement is drafted. I would encourage you to discuss with your legal counsel strategies on how to make the most of a mediation.For example, if an eviction action has already commenced, you may want to attempt to make the agreement a part of the ORS 105.148 mediation/agreement process. Another example is setting up an enforcement mechanism within the agreement itself.  


The CDRC or the designated mediator shall notify MMCRC of the successful or unsuccessful outcome of the mediation. The parties and the CDRC or mediator are not required to give a copy of any mediation agreement to MMCRC.


If a mediation is not successful, the parties may continue on the path they were on before the mediation. 


This sounds expensive, who is paying for it?Mediations will be performed by the existing network of CDRC mediators, funded by the existing annual assessment already paid by tenants ($10, collected with property tax assessments).  If the parties choose a private mediator, then the parties will have to determine how that mediator is paid. Additionally, the current annual fee paid by park landlords ($25 for parks of 20 spaces or fewer, $50 for larger parks) is doubled.


Very interesting (as always), Bill, but what’s this about $100,000 annual grant to the Oregon Law Center?As you may be aware, some states have allocated substantial funding to their state’s Justice Department or to create a team of private attorneys general to assist with enforcement of tenant rights. Similar systems were originally proposed by the tenants during coalition meetings and were strongly opposed by the landlord group. The ultimate compromise was a limited $100,000 per year grant to be given to the Oregon Law Centerto employ oneattorney to provide direct legal services to statewide park and marina residents on matters arising under the Oregon Residential Landlord Tenant Act.


Is mandatory mediation and the $100,000 per year in perpetuity? No. Both elements have a four-year sunset. An advisory committee has been created to monitor both elements, consisting of equal numbers of landlord and tenant representatives to present a report on the status of both elements to the 2021 and 2023 Legislatures to determine whether they should be renewed.


When does all of this go into effect? The effective date of SB 586 is January 1, 2020

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