Phil Querin Q&A: System Failures in Manufactured Housing Communities

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Phil Querin

Question:Our park is having plumbing issues. One resident says a sewage pipe may be collapsing that is obstructing sewage flow. Another resident complains that their tap water is discolored, and says they have to install an expensive filtration system.

 

My question is “Where is the line between resident responsibility and landlord responsibility for park systems – from well water, public water, septic, public sewer, and electrical systems, etc.”?

 

 

Answer.The question is an important one. It calls into play a balancing of two statutes, ORS 90.730and ORS 90.740. Rather than set them out verbatim, below, I will discuss below only those portions of the statutes that deal with the issues you have raised.[1]

 

Tenant Obligations (ORS 90.740)

First, note that these are those tenant duties imposed by the statute. The rental agreement could – though unlikely – could alter them. I say “unlikely” because elsewhere in Chapter 90 the law imposes liability on landlords that try to “shift” to tenants certain statutory duties imposed on landlords.[2]

 

The main requirements dealing with utility systems are as follows:

   

  • First, if the home is being installed by the tenant (or more likely their contractors) it must be in compliance with applicable laws and the rentalagreement.
  • Second, they must install and maintain storm water drains on the roof of the home and connect them to the drainage system (ifany).
  • Third, they must use all electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to thosesystems.

 

Additionally, there are some collateral conduct obligations that could indirectly interfere with the operation of various park-wide systems, and thereby incur liability. They include:

  • As an ongoing obligation, tenants must dispose ashes, garbage, rubbish and other waste in a clean, safe and legal manner. 
  • They must keep the rented space in every part free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin as the condition of the rented space permits and to the extent that the tenant is responsible for causing the problem. 
  • The tenant shall cooperate to a reasonable extent in assisting the landlord in any reasonable effort to remedy theproblem.
  • They must keep the home and the space, safe fromthe hazards of fire. This includes installing and maintaining a smoke alarm approved under applicable law.
  • They must refrain from deliberately or negligently destroying, defacing, damaging, impairing or removing any part of thefacility, other than the tenant’s own dwelling or home, or knowingly permit any person to doso

 

Comment: If an obligation belongs to the tenant, say, installation of the home itself, it continues from homeowner to homeowner. It is never a landlord liability issue. But as discussed below, since the stability of the ground is a landlord duty, the stability of the home could be affected by the ground and become a landlord liability. 

 

Landlord Obligations (ORS 90.730)

The landlord’s primary duty to residents is “habitability”. The statute provides that at to park-wide systems, a rented space is considered unhabitable if it substantially lacks:

  • 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;
  • If required by applicable law, a drainage system must be 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;
  • 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;
  • An electrical supply and 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;
  • 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;

 

As to duties that can indirectly affect park-wide systems and cause landlord liability, ORS 90.730further provides that:

 

  • At the time of commencement of the rental agreement, buildings, grounds and appurtenances must be 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;
  • Excluding the normal settling of land, the park’s surface/ground must be 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

 

As to common areas, if systems are supplied or required to be supplied by the landlord, they are considered unhabitable if they substantially lack:

 

  • 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.

 

Comment: The first point to note is that these landlord duties (a) commence at the time of installation, and (b) continue as maintenance obligations throughout the term of the tenancy. Generally, tenant responsibilities to the community and its systems are governed by usage. If the usage is reasonable and the system fails, generally liability  will fall on the landlord pursuant to ORS 90.730.  The only major exceptions relate to tenant-required duties, i.e. (a) installation/stability of the home and (b) installation of storm water drains on the roof and their connection to the drainage system. Generally, these are where the “lines of responsibility” begin and end.

 

Conclusion.So with regard to the (allegedly) collapsing sewer pipe, unless there is some evidence of tenant responsibility, it is likely a landlord maintenance issue under ORS 90.730.

 

As to discoloration in the tap water, the solution is to immediately get the water tested and find out if others in the community are experiencing the same issue. Testing will likely disclose the source of the problem and whether it is dangerous. In both instances, unless there is some evidence of tenant-related causes, it is a landlord problem (to the extent the water supply system can be controlled by the landlord) the remedy will likely be on your dime. But installation of an “expensive filtration system” was likely premature, and the result of a good sales pitch. Ask the tenant for copies of all tests run before the system was installed.

 

[1]Caution: There are other duties and responsibilities addressed in these two statutes. The text quoted above only deals with responsibilities for park-wide systems. Accordingly, the statutes should be reviewed in their entirety.

[2]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.

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