Answer: Absent an agreement that the Landlord has assumed this responsibility, ORS 90.740(4) provides that maintenance of the Space is the Tenant’s responsibility. This includes the following:
(b) Keeping 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 the problem;
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(h) Maintaining, watering and mowing or pruning any shrubbery or grass on the rented space;
(i) Maintaining and watering trees, including cleanup and removal of fallen branches and leaves, on the rented space for a manufactured dwelling except for hazard trees as provided in ORS 90.727.
So, to the issue of the Tenant refusing to perform their ORS 90.740(4) duties, the Landlord’s main alternative is to issue a 30-day notice to terminate the tenancy pursuant to ORS 90.630(1)(b).
However, if you do not want to pursue that remedy, you need to first understand the limitations on your right of access. Be aware that the issue of entering a Tenant’s Space is fraught with risk relating to Tenant claims of damage to the property and lack of legal consent. During the tenancy, a Landlord’s rights are governed by ORS 90.322, which limits access to:
- Inspection of the premises;
- Making necessary or agreed repairs, decorations, alterations or improvements;
- Supplying necessary or agreed services, perform agreed yard maintenance or grounds keeping; or
- Exhibiting the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers or contractors.
However, assuming no emergency,[1] and absent a written agreement providing otherwise, Landlords must give at least 24-hours’ actual notice[2] of the intent to enter, but only at reasonable times. An “unreasonable time" is defined as: “…a time of day, day of the week or particular time that conflicts with the tenant's reasonable and specific plans to use the premises.” The open-ended nature of this language leaves room for argument, but my interpretation (without reading the case law) on what should be reasonable is weekdays between 9:00 AM and 5:00 PM, and Saturdays, 10:00 AM – 4:00 PM. I would avoid Sundays if possible, unless with Tenant’s consent.
Conclusion. I do not believe accessing a Tenant’s Space to perform work (except in the case of an emergency) is a good option because of the many things that could go wrong. I assume you have already made several reasonable attempts via personal contact, telephone and/or email to secure the Tenant’s cooperation and informed him/her that if the requested work is not performed, you intend to gain access, perform the work, and send out a bill for services. Knowing his recalcitrance, what makes you believe the Tenant will be OK with you or your contractor taking self-help action? And how are you going to determine the cost? Is it reasonable? Will the work be done to current standards? And by the way, is your insurance carrier going to cover the cost of defending you when the Tenant’s lawsuit is filed?
The only reasonable basis for proceeding down this risky path would be to have this remedy clearly defined in your Rules and Regulations. What would it look like? That’s up to your attorney, but for starters, you might list the parade of horribles that could go wrong, and proceed from there. And if that is not enough to dissuade you from this undertaking, know this: Notwithstanding your plans, the statute allows the Tenant the right to deny access by giving you “actual notice” at any time prior to entry. The next stop will be court.
Under these circumstances, a 30-day notice to terminate the tenancy may be the most effective tool in either securing the Tenant’s cooperation - or eviction. Good luck!
[1] “Emergency” includes but is not limited to a repair problem that, unless remedied immediately, is likely to cause serious damage to the premises. If a landlord makes an emergency entry in the tenant’s absence, the landlord shall give the tenant actual notice within 24 hours after the entry, and the notice shall include the fact of the entry, the date and time
[2] This term is defined in governed by ORS 90.150, and includes verbal and written notice. It should be closely reviewed before proceeding.
