As of July 1, 1992, all manufactured home communities renting space for manufactured dwellings have been required to provide prospective and existing tenants with a Statement of Policy. The applicants must receive their Statement of Policy before signing the rental agreement. Existing tenants who have not previously received a copy of the Statement of Policy and are on month-to-month rental agreements must receive their copy at the time the next 90-day rent increases notice is issued (ORS 90.510(3)(b). All other existing tenants shall receive a copy of the statement of policy upon expiration of their current rental agreement and before signing a new agreement.

While a Statement of Policy is not technically a contract, it is an important document. A tenant or rental applicant who makes their decisions or changes their position in reliance upon the policies set forth in the statement may be entitled to hold the landlord to those written policies. As proof of delivery of the Statement of Policy to tenants or applicants, it is advised to get a signed receipt.

A landlord who intentionally and deliberately fails to provide a Statement of Policy as required by ORS 90.510, or delivers a legally defective one, may be subject to a lawsuit.

The Statement of Policy is required to include the following information in summary form:

1. The location and approximate size of the space to be rented.
2. The federal fair housing age classification and present zoning that affect the use of the rented space.
3. The facility policy regarding rent adjustment and a rent history for the space to be rented. The rent history must, at a minimum, show the rent amounts on January 1 of each of the five preceding calendar years or during the length of the landlord's ownership, leasing or subleasing of the facility, whichever period is shorter.
4. All personal property, services and facilities to be provided by the landlord.
5. All installation charges imposed by the landlord and installation fees imposed by government agencies.
6. The facility policy regarding rental agreement termination including but not limited to closure of the facility.
7. The facility policy regarding facility sale.
8. The facility policy regarding informal dispute resolution.
9. Utilities and services available, the person furnishing them and the person responsible for payment.
10. If a tenants' association exists for the facility, a one-page summary about the tenants' association that shall be provided to the landlord by the tenants' association and shall be attached to the statement of policy.
11. Any facility policy regarding the removal of a manufactured dwelling, including a statement that removal may impact the market value of a dwelling. 

QUESTION: I have been informed by a swimming pool company that manufactured housing community owners are now required to provide an accessible means of entry for swimming pools. Is it true that community owners with existing pools will now have to buy pool lifts or construct accessible stairs into the pool? If so, it will be a huge expense for many park owners.

ANSWER: The Americans with Disability Act, or "ADA"deals with accommodations in two major sectors, public (Title II) and private (Title III). The public sector covers state and local governmental facilities and the private sector deals with private entities that "own, operate, and lease" places of public accommodation, such as restaurants, hotels, theaters, convention centers, retail stores, shopping malls, dry cleaners, laundromats, pharmacies, doctors' offices, hospitals, museums, libraries, parks, zoos, amusement parks, private schools, day care centers, health spa and bowling alleys.

On September 15, 2010, the United States Department of Justice (DOJ), who enforces the ADA, issued revised regulations for Titles II and III. Among other things, the new regulations include new accessibility standards for swimming pools. Existing swimming pools must be modified to comply with the 2010 guidelines no later than March 12, 2012. For new construction, the 2010 guidelines must be followed on a going forward basis. Included in these guidelines are swimming pool accessibility requirements. They provide that any swimming pool with less than 300 linear feet of pool wall must provide one means of access either by sloped entry or by the installation of a pool lift.

Any pool that has more than 300 linear feet of pool wall must provide two means of access, which can be any of five designated means of access: (1) pool lifts, (2) sloped entries, (3) transfer walls, (4) transfer systems, or (5) accessible pool stairs. Having said this, it is clear that private manufactured housing communities are neither public or private facilities that offer "public accommodations"under the ADA " at least insofar as they do not open their pool and recreational facilities to the general public.

However, two words of warning:

1. While the ADA does not strictly cover private residential facilities such as apartments, homes and manufactured housing communities, if a park resident provides child day care services open to the public in his or her private residence, those portions of the residence used for that purpose are subject to ADA's requirements. So, community owners and managers should be aware if any of their residents are operating such services, as ADA accessibility, including the pool area, may be subject to ADA requirements, to the extent that the resident makes the park facilities available for use by the children.
2. The Fair Housing Act, which is administered by Housing and Urban Development ("HUD"), prohibits discrimination on the basis of handicap. To that extent, landlords arerequired to make "reasonable accommodations" if requested by their handicapped residents. To some extent, this could apply to a pool or other recreational facilities. The body of law as to what constitutes a "reasonable accommodation" is far too voluminous to address here. Suffice it to say, however, that a landlord is not required to make such an accommodation (e.g. retrofitting the community's existing swimming pool) if the cost would impose an undue financial burden.

IMPORTANT INFORMATION ABOUT THIS Q & A SERVICE THE QUESTIONS AND ANSWERS ON THIS SITE ARE PROVIDED AS A BENEFIT FOR OUR MEMBERS. IT IS MADE AVAILABLE SOLELY FOR GENERAL INFORMATIONAL PURPOSES, AND DOES NOT REPRESENT, AND IS NOT INTENDED TO PROVIDE, LEGAL ADVICE OR OPINION AND SHOULD NOT BE RELIED UPON AS SUCH. THE ANSWERS ARE SUMMARY IN NATURE, AND ARE NOT INTENDED TO ADDRESS ALL RELEVANT LEGAL DEVELOPMENTS OR SITUATIONS RELATING TO LOCAL, STATE OR FEDERAL LAW OR RELEVANT CASE HOLDINGS. IF YOU HAVE A SPECIFIC LEGAL ISSUE ON ANY MATTER, YOU SHOULD ALWAYS CONSULT YOUR OWN ATTORNEY FAMILIAR WITH YOUR SPECIFIC FACTUAL SITUATION. MHCO DOES NOT PROVIDE LEGAL ADVICE TO MEMBERS OR NON-MEMBERS. MHCO, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND ATTORNEYS SPECIFICALLY DISCLAIM ANY AND ALL RESPONSIBILITY RELATING TO THE INFORMATION PROVIDED IN THIS SERVICE. IT IS NOT LEGAL ADVICE. IT IS FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE RELIED UP IN LIEU OF OBTAINING SPECIFIC ADVICE AND COUNSEL FROM YOUR OWN ATTORNEY.

Before any tenant moves into your community the tenant's file should contain the following information:

1. Completed Application
2. Signed Rental Agreement. (Resident is to receive a copy)
3. Signed Rules and Regulations (Resident is to receive a copy)
4. Signed Statement of Policy including Rent History Addendum. (Tenant is to have received a copy of the Statement of Policy prior to signing rental agreement.)
5. Copy of Homeowner's insurance policy with community named as an interested party (for the purpose of being notified of cancellation of insurance. (This is for pets only.)
6. Credit check results
7. Rental check results
8. Criminal check results
9. Application screening fee receipt
10. Pet Agreement - Identify type of pet, name, size. You might consider taking a picture of the pet to include in your file in case you need to identify the pet in the future. Resident must sign the pet agreement. (Resident is to receive a copy)
11. Proof of Age if 55 and older community (photo ID, driver's license)
12. RV Storage Agreement. Identify type of RV (i.e. boat, camper, trailer, etc.) and include license number and description of recreational vehicle. (Resident is to receive a copy)

Any and all notices/correspondence between landlord/manager and resident 

QUESTION: We ran into a problem recently that we were hoping you could answer.  In Multnomah County, when we file an eviction ("FED"), we are required to file a document entitled "Declaration of Non-Military, Not Minor or Incapacitated." This form requires us to select one of the following categories regarding the defendant's protection under the Service Members Civil Relief Act ("SCRA" or "the Act"): (a) That the person is subject to protection, (b) that he/she is not subject to protection, or (c) that we are unable to determine whether the defendant is or is not subject to the Act.

We had checked the box saying we could not determine, and explained that "We have never seen any indication that this person is or was a service member."  The judge said this was insufficient and refused to grant the FED.  He told us to seek legal counsel.

Any ideas on what we did wrong or how to avoid this problem? I believe there is a web page where you can look up service members, but in this case we don't have a social security number on the resident, so we couldn't look him up anyway.

ANSWER: I've never heard of a judge denying a declaration because a landlord hadn't run the tenant's information through Act's website.  In order to do the search, you need the tenant's first and last name and SSN.  You can also put in their birth date, but I think the SSN gets the best results. The Act's database cannot complete the search if you don't have a SSN or birth date. I'm surprised that the judge didn't set over the hearing and simply direct the you to the website.  Perhaps you could have determined the answer if you had entered the birth date - assuming you had it.  I suspect the judge was new to the job.

Here's the link to their site: https://www.dmdc.osd.mil/appj/scra/scraHome.do

When we don't have a SSN or birth date, we put a statement in the declaration similar to the one you used.  Basically, all you should need to do is show that you have conducted a reasonable investigation based upon the information you have, and that you have been unable to determine through the website or other evidence, that the person is protected by the Act. 

Here's an example that we've used at Multnomah County Circuit Court:

Due to lack of information, the Department of Defense's SCRA military records website could not confirm whether or not defendants, John and Mary Doe, are currently on active duty. It appears to be very unlikely, since the community managers see the defendants on a regular basis and have no knowledge of either of them serving in the United States Military.

The problem you describe only occurs when the defendant does not appear at the first appearance hearing and the judge is uncomfortable granting the judgment of restitution by default without what he/she feels is sufficient evidence that they are not on active duty with the military.  The rash of recent improper foreclosures against servicemen/women probably doesn't help the judge's comfort level.  The judge should have been more helpful, but you should be able to conduct your search on the website, then go back and try again.

I think the take-away here is that landlords should try to get as much information from their resident-applicants in order to avoid these situations in the future.

A landlord may require the payment of a security deposit (ORS 90.295). The landlord may claim from the security deposit only the amount reasonably necessary to:

1. Remedy the tenant's defaults in the performance of the rental agreement including but not limited to unpaid rent.
2. To repair damages caused by the tenant and not caused by ordinary wear and tear.

A landlord may not claim any portion of the deposit due to the tenant/resident failure to maintain a minimum number of months in a month-to-month tenancy.

Upon termination of the tenancy, the landlord shall account for and refund to the tenant the unused balance of any prepaid rent. Within 31 days after the termination of the tenancy and delivery of possession the landlord shall give to the tenant a written accounting which states specifically the basis of the claim. The landlord shall give a separate accounting for security deposits. 

In the case of the tenant/resident who already occupies a space in a community without a Rental Agreement, a written agreement should be prepared and presented to the tenant for signature. The written agreement should incorporate the basic provisions of the existing oral agreement. If the tenant refuses to sign the agreement try to find out the basis of the tenant's objection. If changes can be made that are satisfactory to you and the tenant, then the changes should be made in agreement, initialed, signed and dated. If the tenant still refuses to sign the Rental Agreement, whether changed or not, you should give or mail the tenant a copy of the Rental Agreement that the tenant/resident refused to sign. The date of the mailing or delivery should be indicated on both your copy and the tenant's copy. If mailed, keep a copy of the cover letter that you send along with the tenant's copy of the Rental Agreement. You cannot force a resident to sign a rental agreement if they have been living in the community without a rental agreement.

ORS 90.710 (2) (d) allows, "Notwithstanding ORS 41.580 (1), if a landlord and tenant mutually agree on the terms of an oral agreement for renting residential property, but the tenant refuses to sign a written memorandum of that agreement after it has been reduced to writing by the landlord and offered to the tenant for the tenant's signature, the oral agreement shall be enforceable notwithstanding the tenant's refusal to sign". 

The required provisions of a rental/lease agreement are covered in ORS 90.510(5). These requirements include:

1. Location and approximate size of the space.
2. Federal Fair Housing age classification.
3. Monthly rent.
4. All personal property, services and facilities to be provided by the landlord
5. All deposits (refundable and non-refundable), fees and installation charges including government fees.
6. Improvements the tenant may or must make to the space or unit including plant material and landscaping.
7. Provisions for dealing with improvements to the space.
8. Any conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. This should be identical to the community's screening criteria.
9. Term of tenancy.
10. Processes for change to rules and regulations.
11. The process by which notices shall be given by either landlord or tenant

All of these provisions are included in the MHCO Rental/Lease Agreement

(MHCO Form 5A and 5B) 

As a community manager, you will normally be charged with accepting or rejecting prospective residents. This is one of the most important functions that you will perform as a manager of a manufactured home community. Done properly and effectively, the rental application and screening process will minimize potential problems in landlord - resident relations. If the process is done incorrectly the seeds of future problems will be sown. Every prospective resident should be given sufficient information to make an informed decision about living in a manufactured home community.

When an individual stops by the manufactured home community office inquiring on the possibility of becoming a resident, always give them an application packet. Anyone who is interested in applying should be given the application packet - inconsistency in giving out application packets could lead to cause of action by the resident selling the home in the community or a fair housing violation.

The application packet is your opportunity to sell the prospective resident on your community. Include in the application packet an application and "Minimum Criteria Standards", optional information may include what homes are available in the community, a community newsletter, information on the history of the community, the advantages of living in a manufactured home community etc. You may also want to include at this time a copy of the rental/lease agreement, rules and regulations, rent history, and statement of policy. Remember, you want to sell the prospective resident on your community, but you also want them to make a well informed decision.

Providing a prospective resident's with extensive information regarding your manufactured home community allows the applicant to evaluate for themselves if they qualify. Including what your expectations are in order to qualify and expectations and requirements to maintain residency in the community allows the prospective resident to self qualify.

The overall rental application process should include:

1. Review application to make sure it has been completely filled out.
2. Check to make sure that the applicant has included social security number, driver license information etc.
3. Provide the applicant with a copy of the Statement of Policy (keep a signed copy or receipt for your file), the rent history of the space, Rental Agreement/Lease, Park Rules & Regulations, RV Storage Agreement and Pet Agreement (if applicable), and a Flood Plain Notice. None of these documents should be signed by the community owner or manager until the application process is complete and the prospective resident is accepted.
4. Collect application fee.
5. Provide prospective resident with application fee receipt.
6. Conduct credit, rental and criminal check.
7. Attach copies of credit, rental and criminal check to application
8. If credit, rental and criminal checks are acceptable contact prospective resident.
9. If they are denied and they are purchasing an existing home in the park, send them an application denial form. Also, send a copy to the resident selling the home and one for the tenant's file.

Under current Oregon law you will have not more than 7 days to accept or reject a prospective resident. The 7 days begins on the day of receipt of a complete and accurate written application. The landlord and the prospective resident may agree to a longer time period for the landlord to evaluate the prospective resident's application to address any failure to meet the landlord's screening or admission criteria.

If the existing resident fails to give the required 10 day notice in writing prior to the sale of the home, the landlord may extend the written application process by 10 days. (ORS 90.680)

An application is not complete until the prospective purchaser pays any required applicant screening charge and provides the landlord with all information and documentation required pursuant to ORS 90.510 including any financial data and references. 

MHCO Note: At the time of this printing, the Federal Trade Commission still has the effective date for enforcement of the Red Flags Rule as December 31, 2010. Exemptions for specific industries have been granted as late as the first week of December 2010. MHCO and MHI are conducting research on this topic and will be providing additional information as it becomes available. The Federal Trade Commission link is http://www.ftc.gov/bcp/edu/microsites/redflagsrule/index.shtml and contains a lot of information that should be of interest to community owners and manufactured home community retailers. If you are subject to the new rule there is a template developed by the FTC for businesses at low risk for identity theft at this site. While we are still looking into this and monitoring developments in the Congress, it is likely that if a community owner is not billing for utilities, is not providing loans for residents purchasing homes, and is not acting as a retailer selling homes, they are not probably covered by the Red Flags Rule.

The "Red Flags" Rule: What You Need to Know

As of June 1, 2010 the Federal Trade Commission has begun enforcement of the 'Red Flags' rule which mandates creditors and financial institutions to implement identity theft prevention programs. It's important to spend some time discussing the rule, including what it is and what it means for you

The "Red Flags" Rule - In Plain English

The full title is this: "Identity Theft Red Flags and Address Discrepancies under the Fair and Accurate Credit Transactions Act of 2003" (FACT). It amends the Fair Credit Reporting Act (FCRA). The rule was written specifically for companies making loans, such as banks and commercial lending institutions, but a portion of it extends to rental property owners and managers since both rely on consumer reports (e.g. credit) that (1) ask for sensitive information, such as social security numbers, and (2) could turn up address discrepancies. The philosophy behind this rule is simple: sensitive information must be kept secure to prevent identity theft, and a discrepancy in address could indicate fraud.

The rule requires that "reasonable" policies be in place to prevent identity theft and to verify a person's identity when an address discrepancy is reported. In the case of address discrepancy, if the property manager can't work out the discrepancy, the rule says he/she is not to rent to this individual.

What the Red Flags Rule Means for Rental Owners & Property Managers

While the rule has caused some confusion, compliance is straightforward. More than likely, you're probably already in compliance since the only thing that rental owners or property managers have to show is that they have a "reasonable" process in place for preventing identity theft and for checking IDs, verifying IDs, and following up/asking about any discrepancies.

For example, how do you destroy electronic and paper records that contain sensitive information? Or how about this: if someone gives one address on his or her rental application, but the license lists another address, what's your policy for handling this situation? As long as you have reasonable policies in place, you're in compliance.

Do I need to create a special report if I suspect fraud?

The other commonly asked question about the Red Flags rule (beyond "how do I comply") is this: do we need to report suspected fraud? The answer - for better or worse - is no. If you believe someone is trying to perpetrate a fraud, there's no requirement beyond not renting to this individual.

Still Unsure About the Red Flags Rule? Contact Your Screening Partner

Laws, rules, and amendments result in legitimate questions and concerns, so we understand people's trepidation regarding the Red Flags rule. While it's true that you're likely already in compliance, it can't hurt to contact your screening partner and ask to review with them your policies and systems.

For full details, visit the FTC website at http://www.ftc.gov/redflagsrule

The information in this article should not be construed as legal advice. Always consult an attorney for questions regarding legal matters and compliance.

ScreeningWorks is a service of RentGrow, Inc. the resident screening experts (www.ScreeningWorks.com).

For more information please contact info@screeningworks.com or 888-401-7999.

Look for more information on this issue in future issues of MHCO's "Community Update". 

When any existing resident intends to sell their manufactured home the resident must do the following:

1. Give the landlord a written 10-day notice of their intent to sell their manufactured home. (Note: The 10 days will run parallel with the 7 day application process - i.e. if the resident notifies the landlord of intent to sell the home and does not give the 10 day notice, then the application process time to approve or reject will take 10 days rather than 7 days.)
2. The existing resident must advise the prospective purchaser that they have to fill out an application with the landlord and be approved.
3. Do not move anyone into the manufactured home that has not been approved through the tenant screening and approval process.

If you are aware of a sale and do not have the purchaser fill out an application, or fail to advise the seller and prospective purchaser in writing that the application has been rejected within 7 days after they fill out the application, then the purchaser can move into the mobile home under the same condition of the rental agreement of the seller. Basically, they assume the existing rental agreement you have with the seller of the manufactured home.

If a prospective tenant refuses to provide you with the necessary information for you to qualify them, then it is an automatic denial of the applicant.

It is important that an application is filled out and you check out the person carefully. You should check them out the same as you do any prospective resident. You do not have to approve the person just because they are buying an existing home in the park. If they have a bad credit or rental history, they can be refused as a prospective tenant. This does not necessarily kill the sale of the mobile home. They can still purchase the home, they just cannot keep it in the park. You need to provide a written rejection to both the seller and prospective purchaser within 7 days. You need to advise them why they were not accepted. If you denied them for credit reasons, give the applicant the name and phone number of the company who provided you with the report. Advise the applicant that they can call them if they have any questions regarding the report.

It is important that you advise anyone that has a "For Sale" sign on their manufactured home that they do the three things listed at the beginning of this section. Failure by the prospective resident to fill out an application or the landlord's failure to advise them that they do not qualify can be a very costly mistake in the event they move in and then you give them notice. It makes for ill feelings for everyone involved.

If a resident sells their home and the new owner of the home has not filled out an application prior to moving into the home, you do not need to accept them as a resident. You have no contract with them and you can request them to remove the home from the park. DO NOT ALLOW PROSPECTIVE TENANTS TO MOVE IN BEFORE THE SCREENING PROCESS HAS BEEN COMPLETED, AND THE APPLICANT HAS BEEN APPROVED AND SIGNED, AND RECEIPTED FOR THE STATEMENT OF POLICY, RULES AND REGULATIONS AND RENTAL AGREEMENT. DO NOT ACCEPT RENT FROM ANYONE THAT YOU HAVE NOT APPROVED TO LIVE IN THAT HOME. If you accept rent before you qualify them then you may have established them as a tenant. Simply tell them that you cannot accept the rent until they fill out an application and are accepted by the landlord. DO NOT HAVE ANYONE SIGN A RENTAL AGREEMENT UNTIL YOU HAVE RUN CREDIT, RENTAL AND CRIMINAL CHECKS ON THEM AND THEY HAVE BEEN ACCEPTED. If any of the reports come back unfavorable there is nothing you can do about it because you have established them as a tenant by signing the agreement/lease.