Question: A home was purchased by a local dealer from a resident who had not paid rent for several months. The dealer then sold the home to another person who applied for tenancy and passed the screening criteria. The landlord wants the past due rent ($900) paid before permitting applicant to move into the home. Can the landlord go after the dealer to pay the past due rent? Can the landlord keep the applicant from moving in until the $900 is paid? Should the landlord have given some notice to the existing tenant, the dealer, and/or the prospective tenant, regarding how the unpaid rent should be handled? What about other expenses the tenant who sold the home ran up, such as utilities, late fees, maintenance clean up expenses, etc.? What do you suggest as far as notices to the dealer stating the amount of money owed? The dealer is not the lien holder.

Answer: Landlords should become intimately familiar with ORS 90.680, and then make sure their rules and rental agreements conform to what is allowed. Set forth below is a summary of those portions of the statute that address your questions:

o If the prospective purchaser of a manufactured dwelling or floating home desires to leave the dwelling or home on the rented space and become a tenant, the landlord may require the following:

o That a tenant give not more than 10 days' notice in writing prior to the sale of the dwelling or home on a rented space;

o That prior to the sale, the prospective purchaser submit to the landlord a complete and accurate written application for occupancy of the dwelling or home as a tenant after the sale is finalized;

o That a prospective purchaser may not occupy the dwelling or home until after the prospective purchaser is accepted by the landlord as a tenant;

o That a tenant give notice to any lienholder, prospective purchaser or person licensed to sell dwellings or homes of the requirements of the resale requirements [Emphasis mine - PCQ];

o If the sale is not by a lienholder, that the prospective purchaser pay in full all rents, fees, deposits or charges owed by the tenant prior to the landlord's acceptance of the prospective purchaser as a tenant [Emphasis mine];

o If the landlord's rules and/or rental agreement requires prospective purchasers to submit an application for occupancy as a tenant, at the time that the landlord gives the prospective purchaser an application the landlord shall also give the prospective purchaser copies of the statement of policy, the rental agreement and the facility rules and regulations, including any conditions imposed on a subsequent sale ;

o The following conditions apply if a landlord receives an application for tenancy from a prospective purchaser:

o The landlord shall accept or reject the prospective purchaser's application within seven days following the day the landlord receives a complete and accurate written application ;

o An application is not complete until the prospective purchaser pays any required applicant screening charge and provides the landlord with all information and documentation, including any financial data and references, required by the landlord;

o The landlord may not unreasonably reject a prospective purchaser as a tenant. Reasonable cause for rejection includes, but is not limited to:

o Failure of the prospective purchaser to meet the landlord's conditions for approval;

o Failure of the prospective purchaser's references to respond to the landlord's timely request for verification within the time allowed for acceptance or rejection;

o In most cases, the landlord must furnish to the seller and purchaser a written statement of the reasons for any rejection ;

o The landlord may give the tenant selling the home a notice to repair the home [e.g. for damage or deterioration] under ORS 90.632. The landlord may also give any prospective purchaser a copy of that notice.

o The landlord may require as a condition of tenancy that a prospective purchaser who desires to leave the dwelling or home on the rented space and become a tenant must comply with the repair notice within the allowed period under ORS 90.632.

o If the tenancy has been terminated for failure to timely complete the repairs under ORS 90.632, a prospective purchaser does not have a right to leave the dwelling or home on the rented space and become a tenant.

Obviously, the statute was drafted with tenant/purchasers in mind. However, as long as the home remains on the space, the landlord has complete control over the situation. In your case, I suspect the delinquent tenant made no effort to notify the landlord of his planned sale to the dealer. However, that does not prevent him from imposing these requirements on the dealer if he wants to put a tenant in the park.

Going forward, it might be advisable for all landlords who have faced this situation before, to prepare a summary of requirements to give dealers when they purchase homes from tenants already sited in the park. They may want to expressly address this in their rules, so tenants cannot say they didn't know. The written summary to dealers should clearly state that if a departing tenant owes monies to the landlord, repayment will be required before occupancy of the home will be permitted by a new resident. [A more difficult question that is not addressed by the statute, ORS 90.680, is whether the landlord may prevent the dealer from removing the home without paying the past due sums. I suspect the answer may be Yes" a landlord may do so

Question: The law and MHCO ocupancy agreement both state that a landlord can screen an occupant for conduct or criminal history but not for credit history or income level. If after screening a temporary occupant, the findings reveal that they have civil case(s) and/or eviction matters relating to previous rental history where the derogatory rental reference is financial (not necessarily bad personal conduct). Can this be grounds for denial?

By Kris Monte - President Blackhawk Capital Group

E-mail: kmonte@bhcapitalgroup.com

The SAFE Act has received a lot of attention lately by park owners, but did you know that it's really only one law of many state and federal lending regulations you are required to comply with when selling homes on contract?

The SAFE Act requires you, the park owner, to either use a licensed Mortgage Loan Originator such as Blackhawk Capital Group or obtain your own origination licensing in order to sell your park homes on installment contracts. However, the greater issue is that obtaining those licenses for most companies is really a small step towards being fully compliant when acting as a creditor. Below are just a few of the other regulations that you need to follow as a creditor.

1) The Dodd-Frank Wall Street Reform and Consumer Protection Act (DFA) established the Consumer Financial Protection Bureau (CFPB) as an independent entity housed within the Federal Reserve Board (FRB). The newly created CFPB is the primary regulator for non-depository lenders with the broad authority to write rules to protect consumers, a.k.a. borrowers"

Question: A few years ago, a married couple originally applied together for residency in our community. Based on their combined credit scores, they were both approved for residency. They have since divorced and one of them has moved out. How do we deal with this?

We have several questions listed below.

Question: We just acquired a manufactured home in our community. I would rather sell it to a new tenant, but would consider renting it out or doing a rent-to-own. If I pursue rent-to-own option, will I be subject to the new SAFE Act?

Answer: Remember that the SAFE Act only applies if the seller/landlord is providing financing, and in doing so, is going to make a credit decision regarding the buyer's financial capacity.

In short, so long as you don't extend credit (which includes carrying back a security agreement or other form of installment payment contract) you're not subject to the Act. If you do a credit check for your prospective tenant, this would not be covered by SAFE. Make sure that your lease/option or rent-to-own paperwork is reviewed by legal counsel - and under no circumstances do you want to offer an extension of credit in the transactional documents. Under SAFE, if you extend credit for the purchase of the home you would have to be a Mortgage Loan Originator as described in the Act. I did an extensive summary (FAQs) on the SAFE Act, and you can link directly to it on the MHCO website.

However, on another note, you might want to consider what you are getting into as a landlord of mobile homes. First, you will be responsible for providing certain statutory essential services" which are far more extensive than if you were merely a landlord of the space. Additionally

Question: A resident living alone passed away. It took some time for the estate to get underway because they had to search for heirs. An heir was located and was appointed as Administrator to act on behalf of the estate. Shortly after the resident’s passing, we began requesting that a Storage Agreement be signed but the estate was hesitant to do so until the Administrator was appointed. After the appointment the Administrator was initially cooperative, but unexpectedly changed his mind and is now threatening to bring all of the past due rent current, and then, out of spite, tear the home down while still on the space. Presumably, after doing so, we would expect the Administrator to cease all further space rental payments. How should we handle this?

Answer: This sounds like an episode from a Jerry Springer reality show! Your question doesn’t make it clear whether the estate was formally filed for probate in court, in which case this “Administrator” would be subject to court supervision and would have to have a bond. I’m suspecting that is not the case – but if it is, you may want to secure legal counsel to notify the court of what’s happening and perhaps get him removed.

Assuming that the person is just a designee for the un-probated estate (I will call him the “representative”), I would suggest that you look to ORS 90.675(20), which applies when a resident living alone passes away. Subsection (20) is summarized below, but should not be used as a substitute for reading ORS 90.675 (linked here) in its entirety:

• This subsection (20) applies the same duties as those of a resident who abandoned the property.

• It also applies to any personal representative named in a will or appointed by a court, or any person designated in writing by the decedent to be contacted by the landlord in the event of the tenant’s death;

• The 45-day abandonment notice required in ORS 90.675(3) (go to above link) is to be sent by first class mail to this representative at the premises, and also personally delivered or sent by first class mail to them if actually known to the landlord.

• If the representative responds by actual notice to a landlord within the 45-day period provided in the letter and so requests, the landlord shall enter into a written storage agreement with the representative or person providing that the personal property may not be sold or disposed of by the landlord for up to 90 days or until conclusion of any probate proceedings, whichever is later.

• Note: Entering into the storage agreement includes the duty to pay a “storage fee” which can be no higher than the space rent. This duty is not triggered until the 45-day letter is sent. Presumably you will use a good storage agreement that requires, among other things, compliance with all applicable park rules and state, federal and local laws and ordinances, including a duty to maintain the space. On- site destruction of the home is NOT maintaining the space. Depending upon the home’s age, on site destruction could be a violation of certain environmental laws, due to potentially hazardous material used in construction. In fact, since there is a risk that the representative will not comply with the storage agreement – based on his threat of destruction - you may want to consider – only upon the advice of your attorney – to restrict his unsupervised access to the home. Destruction of the home would not only take it off the tax rolls in violation of Oregon property tax law, but it would prevent you, as the landlord, from selling the home upon failure of the representative to meet his obligations. Remember, in addition to the tax collector, you have a vested interest in seeing the home sold for recoupment any sums due (arguably including attorney fees) incurred during the abandonment process.

• Since the abandonment law requires that the landlord has a duty of safe keeping pending completion of the abandonment process, it is my belief that this entitles the landlord to secure the home (e.g. with a new lock) so that heirs and others cannot enter and remove personal property.

• A storage agreement entitles the representative to store the personal property on the space during the term of the agreement, but does not entitle anyone to occupy the personal property.

• If such an agreement is entered into, the landlord may not enter a similar agreement with a lienholder (if any) until the agreement with the representative ends.

• If the representative requests that a landlord enter into a storage agreement and there is a lienholder, also, you should review subsections (19)(c) to (e) and (g)(C) of ORS 90.675, which describes the rights and responsibilities of a lienholder with regard to the storage agreement.

• During the term of the Storage Agreement, the representative has the right to remove or sell the property, including a sale to a purchaser or a transfer to an heir who wishes to leave the property on the space and become a tenant. However, this prospective tenant is subject to the same statutory requirement, including landlord qualification and approval, as found in ORS 90.680 (linked here). The landlord also may condition approval for occupancy upon payment of all unpaid storage charges and maintenance costs.

• If the representative violates the storage agreement, the landlord may terminate it by giving at least 30 days’ written notice to them stating facts sufficient to notify them of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the Storage Agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the representative.

• Upon the failure of a representative to enter into a storage agreement or upon termination of an agreement, unless the parties otherwise agree or the representative has sold or removed the home, the landlord may sell or dispose of it pursuant to sale provisions of ORS 90.675 without further notice to the representative.

So, in summary, the abandonment statute – which is quite lengthy and somewhat difficult to follow – applies in this case, and with proper guidance, you should be able to successfully deal with the representative.

Question: We have had to file two consecutive FED Complaints against a resident. The day before the first appearance for each case, the resident tender the rent that was due, although he do not pay the court fees of $115.00. After two months of this, he owes us $230.00. He promises to repay this amount but does not. Now rent is due for January, 2012. We are sure the same thing will happen again. How can we collect the court fees?

Answer: I assume that when he tenders the rent, you accept it and report to the court that the case is to be dismissed. This means that any leverage you had to make the full payment, including court fees, has disappeared. You might consider one of the two following alternatives:

1. Since the 72 hours has already expired and you've had to file the FED complaint, you are not required to accept the rent unless he agrees to pay the court fees. Next time, if he declines, don't let the case be dismissed. Go to the regularly scheduled first appearance. If he shows up, tell the judge you'd gladly permit him to stay if he pays the filing fees. If he can't afford to pay it in one lump sum, negotiate a repayment plan (e.g. 50% next month and 50% the following month). Then have the judge put the agreement in a Stipulated Judgment of Restitution, which means that if he doesn't pay the sums do as scheduled, you can go back to court to have him evicted.

2. Under Oregon's "three strikes"law [ORS 90.630(8)-(10)], if a resident is issued three 72-hour notices within a rolling 12 month period, you can issue them a 30-day non-curable eviction notice, on or shortly after, the third strike. Then you can say to the resident that you will permit them to stay only on condition of payment of the outstanding court fees. Obviously, this is a pretty big hammer and if they can't pay the fees all at once, you should negotiate partial payments, similar to what I suggested above. However, this alternative would automatically not result in a "Stipulated Judgment of Restitution"(you would have to be in court to get that). For that reason, I prefer No. 1 over No. 2.

Question*: If a community owner sells one or more homes (e.g. those received via abandonment or pre-abandonment) with the help of a Mortgage Loan Originator ("MLO") working for a third party mortgage banker or mortgage broker, after the buyer's installment contract is completed and signed, can the community owner then collect the payments himself? In other words, now that MLO has complied with the SAFE Act, can this receivable be returned to the community owner to collect the monthly payments? My concern is that someone might say that since the owner is now receiving the payments, he is engaged in the business of "loan servicing" - even though it's his own home; he's not in the lending or servicing business; and not receiving or expecting compensation for the act of servicing). It could pose a real financial hardship on community owners if they had to pay a third party for servicing that they can do themselves. The primary reason park owners do this is to fill vacant homes, not to make big money on the sale itself.