Phil Querin Q&A: Pet Violations

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Phil Querin

 

Question: We are trying to send an eviction notice to a tenant who will not keep their pet inside; it is consistently defecating in a neighbor’s yard. I am confused about which MHCO form to use. I don’t wish to levy a fine[1] as they have already received a citation from the city. The 30-Day eviction for continuing violations (No. 43 seems to be the closest form, but the instructions specifically say it is not to be used for a violation involving a pet. Can you clarify how to send an eviction for this issue? 

 

[1] ORS 90.302 allows fines for the violation of a written pet agreement or of a rule relating to pets in a facility.

 

Answer. MHCO Form No. 21 (Pet Agreement) provides that:

 

*** in the event of breach of this Pet Agreement, subject to Oregon law, Management reserves the right, in its sole discretion, to: (a) immediatelyterminate this Pet Agreement and demand removal of the pet(s) and/or (b)terminate the Rental Agreement in accordance with ORS 90.630 or 90.400.[2]

 

So, if your tenant signed this form, one option you have is to demand removal of the pet. Alternatively, you could proceed under ORS 90.630.

 

However, your question points up a difference today between the continuing violation form (No. 43) and the one for distinct and separate violations. (No.43 A).

 

In the past, all violations were given the same period to cure, i.e., 30-days. But changes to the law in 2019 recognized a distinction between violations involving (a) ongoing conduct and (b) those involving separate and distinct events of misconduct. 

 

This made sense, since certain violations, such as speeding through the community, could violate a Rule, but once issued, had to be followed by another repeat violation notice for the second or subsequent violation within the next six months. 

 

Now that the law has bifurcated these two types of violations, MHCO developed the two different termination forms.

 

ORS 90.630 (Termination by landlord) provides, in part, that:

 

“*** (e)xcept as provided in subsection (5) of this section, the landlord may terminate a rental agreement for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days’ notice in writing before the termination date designated in the notice, if the tenant: *** (b) Materially violates a rental agreement provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy;

 

It defines the two distinct types of conduct:

 

  1. Ongoing Conduct:  *** (4) For the purposes of subsection (3) of this section, conduct is ongoing if:

      (a) The conduct is constant or persistent or has been sufficiently repetitive over time that a reasonable person would consider the conduct to be ongoing; and

      (b) The violation does not involve a pet or assistance animal.[3]

 

  1. Separate and Distinct Conduct: *** (B) If the violation involves conduct that was a separate and distinct act or omission and is not ongoing, at least three days after delivery of the notice;

      (d) [The notice must state] that the violation is conduct that is a separate and distinct violation and that the date designated for correcting the violation is different from the termination date; and

      (e) At least one possible method by which the tenant may correct the violation.

 

Discussion. You have treated the pet problem as “ongoing” and issued Form No. 43. But that form and the statute prohibit its use for pet violations. However, the statute does not impose such a limitation for separate violations. Accordingly, Form No. 43 A would be appropriate.  I agree that the distinction can be blurry, since repetitive single acts, such as speeding through the community, could be viewed as “ongoing.” But ignoring the niceties of the distinction, we can agree that the separate act of a pet violation, is best treated using Form 43 A.

 

However, the take-away here is that requiring the use of Pet Agreements is preferable; it has the benefit of finality, since it allows you to demand removal of the pet, rather than the tenant.[4]

 

[1] ORS 90.302 allows fines for the violation of a written pet agreement or of a rule relating to pets in a facility.

[2] ORS 90.400 does not apply to pets in manufactured housing communities.

[3] Without checking legislative history, I am unclear on the reason for this exclusion. It is also possible that this result is simply the result of poor drafting, and that ORS 90.630 prohibits the use of a termination notice for all pet violation notices  - which puts a huge premium on always using the Pet Agreement form.

[4] It is important to note that the statute permitting pet agreements does not address the remedy of removing the pet for violations. But until it is prohibited, that provision will remain in MHCO’s form. For a summary of the law, see link here.

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