Phil Querin Q&A: Home Damaged During Storm

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November 20, 2017
Phil Querin
MHCO Legal Counsel
Querin Law

 

Question.   Last week’s torrential rain caused significant riverbank erosion in our Park and has threatened a home.  What are the landlord’s rights and responsibilities in this situation?  The home will likely have to be moved.  Who pays and what are the timelines, responsibilities and liabilities? Should we accept rent during this time? What if the tenants walk away - abandonment apply under these circumstances?

Answer.   The land is owned by the landlord, not the tenant. While the landlord has certain responsibilities regarding the ground,[1] most of these duties apply at the time in installation of the home.

However, ORS 90.730(3)(g) provides:

(g) Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy;

In this case, I don’t believe the landlord has a duty to backfill the eroded area costing thousands of dollars, but certainly should want to get the tenant relocated as soon as possible. If the home is not habitable due to the dangerous condition of the ground, I believe the tenant should be relocated immediately. If there is danger to the home and tenant, he/she should vacate, and resume occupancy only after the home has been relocated.  In the meantime, I would not recommend accepting rent for a space that is dangerous or not habitable.

If the home is damaged, that is the tenant’s responsibility to repair – hopefully he/she has casualty insurance.

In terms of timing, much depends on the severity of the erosion. As for the cost of the move, that is a good question. The statutes don’t address. I believe it could be covered by the tenant’s insurance company, if there is insurance.  If not, and the tenant cannot afford the move, something has to happen. The landlord’s insurance company may provide coverage, since it was a storm-caused event and affected the park’s property. For example, if the storm cause a tree limb to fall on a tenant’s home, the park’s carrier would likely have to pay. It is not much different with water damage endangering part of the park occupied by tenants. Both water and trees causing storm damage are Acts of God, and this is exactly what liability insurance is for. 

If there is no insurance coverage, I would suggest the cost be borne 50-50 between landlord and tenant, since both need the problem to be resolved, and the current statutes do not provide a clear answer. I suppose if the tenant refused – arguing that the space was created by the landlord, and must assume the risk of erosion along the waterfront – it might end up that the landlord should pay, just to avoid litigation.

If the tenant abandons the home, the landlord would proceed under ORS 90.675. However, absent a written letter from the tenant that they are abandoning the home, I always recommend that it be preceded by a 72-hour notice, because then the 45-day letter can be sent 7 days following entry of an order of restitution, and the landlord does not have to make any assumptions about the tenant’s state of mind.

One note of caution: Before issuing a 72-hour notice in this case, the landlord must relocate the home, since it would be risky to demand payment just because the tenant left a dangerous home.

 

 

 


[1]   90.730 Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition. (1) As used in this section, “facility common areas” means all areas under control of the landlord and held out for the general use of tenants.

      (2) A landlord who rents a space for a manufactured dwelling or floating home shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. The landlord does not have a duty to maintain a dwelling or home. A landlord’s habitability duty under this section includes only the matters described in subsections (3) to (6) of this section.

      (3) For purposes of this section, a rented space is considered unhabitable if it substantially lacks:

      (a) A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord;

      (b) If required by applicable law, a drainage system reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;

      (c) A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord;

      (d) An electrical supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord;

      (e) A natural gas or propane gas supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the gas supply system can be controlled by the landlord, if the utility service is provided within the facility pursuant to the rental agreement;

      (f) At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

      (g) Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy; and

      (h) Completion of any landlord-provided space improvements, including but not limited to installation of carports, garages, driveways and sidewalks, approved under applicable law at the time of installation.

      (4) A rented space is considered unhabitable if the landlord does not maintain a hazard tree as required by ORS 90.727.

      (5) A vacant space in a facility is considered unhabitable if the space substantially lacks safety from the hazards of fire or injury.

      (6) A facility common area is considered unhabitable if it substantially lacks:

      (a) Buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

      (b) Safety from the hazards of fire;

      (c) Trees, shrubbery and grass maintained in a safe manner;

      (d) If supplied or required to be supplied by the landlord to a common area, a water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord; and

      (e) Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of commencement of the rental agreement and for which the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal.

      (7) The landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:

      (a) The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;

      (b) The agreement does not diminish the obligations of the landlord to other tenants on the premises; and

      (c) The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated. [1999 c.676 §6; 2007 c.906 §40; 2011 c.503 §10; 2013 c.443 §2; 2015 c.217 §7]

 

Answer.   The land is owned by the landlord, not the tenant. While the landlord has certain responsibilities regarding the ground,[1] most of these duties apply at the time in installation of the home.

However, ORS 90.730(3)(g) provides:

(g) Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy;

In this case, I don’t believe the landlord has a duty to backfill the eroded area costing thousands of dollars, but certainly should want to get the tenant relocated as soon as possible. If the home is not habitable due to the dangerous condition of the ground, I believe the tenant should be relocated immediately. If there is danger to the home and tenant, he/she should vacate, and resume occupancy only after the home has been relocated.  In the meantime, I would not recommend accepting rent for a space that is dangerous or not habitable.

If the home is damaged, that is the tenant’s responsibility to repair – hopefully he/she has casualty insurance.

In terms of timing, much depends on the severity of the erosion. As for the cost of the move, that is a good question. The statutes don’t address. I believe it could be covered by the tenant’s insurance company, if there is insurance.  If not, and the tenant cannot afford the move, something has to happen. The landlord’s insurance company may provide coverage, since it was a storm-caused event and affected the park’s property. For example, if the storm cause a tree limb to fall on a tenant’s home, the park’s carrier would likely have to pay. It is not much different with water damage endangering part of the park occupied by tenants. Both water and trees causing storm damage are Acts of God, and this is exactly what liability insurance is for. 

If there is no insurance coverage, I would suggest the cost be borne 50-50 between landlord and tenant, since both need the problem to be resolved, and the current statutes do not provide a clear answer. I suppose if the tenant refused – arguing that the space was created by the landlord, and must assume the risk of erosion along the waterfront – it might end up that the landlord should pay, just to avoid litigation.

If the tenant abandons the home, the landlord would proceed under ORS 90.675. However, absent a written letter from the tenant that they are abandoning the home, I always recommend that it be preceded by a 72-hour notice, because then the 45-day letter can be sent 7 days following entry of an order of restitution, and the landlord does not have to make any assumptions about the tenant’s state of mind.

One note of caution: Before issuing a 72-hour notice in this case, the landlord must relocate the home, since it would be risky to demand payment just because the tenant left a dangerous home.

 

 

 


[1]   90.730 Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition. (1) As used in this section, “facility common areas” means all areas under control of the landlord and held out for the general use of tenants.

      (2) A landlord who rents a space for a manufactured dwelling or floating home shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. The landlord does not have a duty to maintain a dwelling or home. A landlord’s habitability duty under this section includes only the matters described in subsections (3) to (6) of this section.

      (3) For purposes of this section, a rented space is considered unhabitable if it substantially lacks:

      (a) A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord;

      (b) If required by applicable law, a drainage system reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;

      (c) A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord;

      (d) An electrical supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord;

      (e) A natural gas or propane gas supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the gas supply system can be controlled by the landlord, if the utility service is provided within the facility pursuant to the rental agreement;

      (f) At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

      (g) Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy; and

      (h) Completion of any landlord-provided space improvements, including but not limited to installation of carports, garages, driveways and sidewalks, approved under applicable law at the time of installation.

      (4) A rented space is considered unhabitable if the landlord does not maintain a hazard tree as required by ORS 90.727.

      (5) A vacant space in a facility is considered unhabitable if the space substantially lacks safety from the hazards of fire or injury.

      (6) A facility common area is considered unhabitable if it substantially lacks:

      (a) Buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

      (b) Safety from the hazards of fire;

      (c) Trees, shrubbery and grass maintained in a safe manner;

      (d) If supplied or required to be supplied by the landlord to a common area, a water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord; and

      (e) Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of commencement of the rental agreement and for which the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal.

      (7) The landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:

      (a) The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;

      (b) The agreement does not diminish the obligations of the landlord to other tenants on the premises; and

      (c) The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated. [1999 c.676 §6; 2007 c.906 §40; 2011 c.503 §10; 2013 c.443 §2; 2015 c.217 §7]

 
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