Comparison of Current Law to Compromise Legislation - (Community Sale Notification Process - Removal of "Right of First Refusal" Language from Current Statute)

Current Oregon law (adopted in 1989) already requires manufactured home park landlords/owners to notify park residents prior to a sale to another owner and to negotiate a possible sale to the residents. ORS 90.760, 90.800 to 90.840. Unfortunately, both landlord and tenant advocates recognize that the current law is seriously flawed and doesn't work for either side. HB 4038A fixes those problems.1.Under current law, it is unclear whether and to whom an owner must give notice of the owner's interest in selling the park, or what that notice must say.a. ORS 90.760 allows an undefined tenants association to give notice to the owner of its interest in buying the park before the owner indicates an interest in selling. Apparently, this notice is good forever, even if the tenants die/move or if there is a different owner. No-one keeps track of these notices. And tenants generally do not think about buying their park until there is some indication that the owner wants to sell, so they don't give the advance notice to the owner.b. ORS 90.810 appears to require notice from the owner even if the tenants have not previously notified the owner of their interest in purchasing the park.HB 4038A amends the law to require an owner to give notice to all tenants, without advance registration, or, if there is an active tenant group with which the owner has met during the past 12 months, to that group only, whenever the owner is interested in selling or has received an offer to buy which the owner is considering. And it defines what must be in the notice. And it requires that a copy go to the Oregon Housing & Community Services Department. And it provides a safe harbor for minor errors in giving the notice. Sections 1, 3(3).2. Under current law, owners are required to negotiate in good faith with the tenants and to give the tenants a 14 day right of first refusal to buy the park. ORS 90.820. a. This duty is completely open-ended, with no time limit on the duty or on the owner's duty to negotiate. b. Owners strongly dislike the concept of a right of first refusal. On the other hand, tenants think that 14 days isn't enough time. c. There is no provision regarding what financial information an owner must share with the tenants in the negotiations. d. There is no provision making shared financial information confidential, and no provision providing a remedy to owners if tenants violate a confidentiality duty. e. There is no provision regarding what steps the tenants must take in the negotiation. f. This duty would apply to an owner even if the owner has a time-sensitive offer from another buyer. g. Good faith" is not the right duty to apply in a commercial real estate transaction.The proposed legislation (HB 4038A) removes the right of first refusal language

Occupancy By Who's Standard (Part 1 of 2)

By Jo Becker, Education/Outreach Specialist, Fair Housing Council Serving Oregon and SW WashingtonI recently read an article on screening by a representative of a NW property management firm. In it was included the company's screening requirements, as well as what was apparently their stock occupancy standard for all units: Maximum occupancy of no more than two (2) persons per bedroom."There is a growing body of case law across the country in which housing providers - both landlords and condo / homeowners' associations - have lost cases in which they've had two-people-per-bedroom policies. At this point

Recreational Vehicle Question and Answer with Attorney Mark Busch

An owner of a mobile home park allows RVs to stay in spaces within his mobile home park. He has them sign an RV nonresident agreement which states that they are not residents and they sign a set of rules and regulations that are different from what the mobile home residents sign. Over the weekend the landlord called the sheriff to evict one of the RVs that had fallen behind in their rent. The sheriff refused to evict the RV as a squatter for trespassing and told the landlord that the RV tenant does, in fact, have certain tenant rights under the Oregon Residential Landlord Tenant Act. The landlord obviously disagrees believing that the RV is transient and since they have fallen behind in their rent, they are a squatter and should be immediately removed from the property for trespassing. How does the landlord deal with this? Does the RV resident have tenant rights even though it is an RV and they signed an RV agreement? How should the landlord proceed with an eviction since the sheriff will not remove the RV? Can the landlord turn off the utilities to the RV?Answer:The last thing the landlord should do is turn off utilities to the RV. Under Oregon law, RV residents do qualify as tenants

Lessons From a $76,000 Fair Housing Settlement

By Jo Becker, Education/Outreach Specialist, Fair Housing Council Serving Oregon and SW WashingtonIn May 2013, Connecticut complainants were awarded over $76K (before attorneys' fees) by the courts in The U.S.A v. Hylton. This is a rental case but the ruling holds several important legal lessons for any housing provider.The complaint alleged that the Hyltons, a Black married couple, violated the Fair Housing Act (FHA) by refusing to allow a mixed-race couple, the Bilbos, to sublet their unit to a Black woman with children because they did not want "too many Blacks" at the property.The decision awarded the following damages:o $31,750 to Mr. And Mrs. Bilbo because their landlord made discriminatory statements to them about being a mixed-race couple, and about the race of their prospective subtenant refusing to allow them to sublet the home to an African American woman and her children because of race. o $10K of this sum was awarded for emotional distress.o Because Ms. Wilson, the prospective subtenant, was denied the home she sought and was qualified for, she continued to live in a racially concentrated area of poverty. Her damages were awarded at $44,431.05o As part her damages, the court awarded Ms. Wilson $20K for compensation for the lost opportunity to live in a neighborhood of lower crime, higher educational opportunities, and greater upward mobility. o Nearly half of the judgment, before attorneys' fees, was for punitive damages.o An additional $37,422 in attorneys' fees brings the total judgment against the defendants to over $113K.Details of the case can be found online.o A summary of the case is available on the HUD site: http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_adv… A summary of the ruling is posted on the DOJ's site: http://www.justice.gov/usao/ct/Press2013/20130812.html (DOJ). o The court's decision can be read at http://law.justia.com/cases/federal/district-courts/connecticut/ctdce/3… Hyltons were independent rental owners managing their own property. They initially rented to the Bilbos; however, the Bilbos found that their personal circumstances required them to move and to break the lease agreement. The Bilbos agreed to find a suitable renter to sublease to. When they did the defendant asked if the person is white. When told she was Black, Hylton stated that he did not want too many Blacks at the property" and that "the neighbors would not want to see too many Blacks there." The defendant also told the Bilbos the only reason they were rented the house was because his wife is white and it was "a good mix."There are several salient points in this case

Submeter Your Community at Zero Out of Pocket Landlord Expense

By Troy Brost Owner SongBrook MHC, Eugene, Past President and Legislative Chair of Manufactured Housing Communities of Oregon The title of this Community Update should have caught your attention. It is not a gimmick, I have done it myself. Adam Cook's MHCO Community Update article, "Can You Afford to Keep Utilities Included in Your Rent?" from last week is spot on! My answer is no, I cannot and no longer do". Both Landlords and Tenants agree of the importance of sub-metering; it is a win-win proposition. Enduring years of Landlord/Tenant Coalition, one of the most daunting tasks was demonstrating Landlords do not have safes' locked full of money. Financing options simply did not exist to fund mandatory sub-metering. Where were Landlords to find upwards of $750+ per homesite to install water sub-meters? Of course, Landlords proved their argument and negotiated the right to unilaterally amend rental agreements to permit community-wide sub-metering; creating provisions to recapture installation expenses by billing Tenants. Considering a new program now available, I believe every Landlord should sub-meter sooner than later! Now available is a sub-meter and installation program at zero expense to any Landlord wanting to install new or replace old sub-meter systems. No applications, no qualifications, and no money down gets you state of the art wireless monitored sub-meters (water, electric, and gas are all available). What's the catch? ... the Landlord signs a 10 year Billing Agreement with the provider, in which the Tenant pays. So, how does it work? First, the meters are purchased/installed/administered/maintained/repaired/monitored/insured/read/etc. by an Independent 3rd party. Just as all meter reading companies, this 3rd party charges a monthly fee for their service ... it is their cost of doing business. In Eugene, this 3rd party charges nearly 1/2 less of what EWEB (Eugene Water and Electric Board) charges it's customers. Second, per ORS 90, the 3rd party bills the Tenant the cost of the sub-meter and installation over a minimum of 60 months. The sub-metering process is complicated; no worries, this 3rd party is experienced, has been in business for nearly a decade, has all the systems and sample notices in place, and handles the entire process on behalf of the Landlord. The Bottom line: local government agencies and utility companies use Landlords to pass through their exorbitant "fees" and rate increases, in which Landlords are forced to carry until the next "rent" increase ... making the Landlord the greedy bad guy. Prior to sub-metering, utility expenses were 23% of my rent; my monthly invoices now line item sub-meter every utility possible. My rents are now very competitive within the market and I have direct control over costs. I see every reason why all Landlords should do the same. Indeed, it sounds too good to be true ... it is. Contact me at troybrost@gmail.com, 541-554-1499, or visit www.infrasystems.us to find out for yourself. I will provide you with the contact and information you need and assist you along the way. -- Troy Brost

Can You Afford to Keep Utilities Included in Your Rent?

By Adam Cook, President of Commonwealth Real Estate Services Part 1 of 2 For better than two decades, one of the most significant and unpredictable factors influencing the bottom line of multifamily housing properties has been rising utility costs. This doesn't cause quite as much heartburn for property owners who have wisely passed such utilities through to the residents to pay in addition to their rent. However, for the overwhelming majority of properties, particularly those which were developed prior to the 90's, the rent charged typically includes any combination of utilities including water, sewer, garbage, and to a lesser percentage electricity, natural gas, cable television/satellite, and internet services. From one year to the next, the only certainty one can realistically expect is that rents will need to be adjusted just to keep pace with the utility increases that are coming one's way from the various providers. The annual questions are always, how much will they collectively go up, will they increase more than I am comfortable with recouping from my community residents, and will there be room to also keep up with inflation on my other increased operating costs? Double digit percentage rate increases aren't just exclusive to medical insurance companies. We have witnessed year-over-year, +20% increases with one sewer treatment provider alone and have seen huge increases from just about every utility with the possible exception of phone services. Another concern about utility costs is the timing of when rates increase which do not necessarily coincide with the implementation of your next rental adjustment, leaving communities absorbing increased costs until the following year. Couple that with each and every time you try to recover these utility costs whereby you look like the quintessential greedy landlord, but in reality, you're just trying to maintain your margin. This should lead owners to question whether they can afford to continue to keep any utilities included in their rent. A perfect illustration of a utility you should be proactive about is water, which is also normally the driving factor behind the sewer expense. You have probably heard that certain municipalities have increased their water rates despite a reduction in overall consumption. This has happened, in part, due to a need to fill a budgetary hole created by less revenue generated as a result of reduced consumption. Rates are high now and will continue to rise. A factor to consider is that over time, the EPA will have even greater scrutiny over water districts, increased regulation and testing requirements, and reduced maximum contaminant levels (MCLs) which will require better and more expensive treatment facilities. All this translates to more expense which will ultimately be passed on to the consumer. One thing is for certain - you don't want to be the last one in your service district to get out from under this payment responsibility. You need to be aware that your business is under attack. Municipalities have grown to be creative in expanding their reach into your pocket by creating new sources of revenue by the addition of new fees and charges. As an example, the City of Oregon City has the following line item charges on its utility invoice: 1. Water Treatment, 2. Water Distribution, 3. Stormwater Management (aka surface water), 4. Pavement Maintenance (aka street sweeping), 5. Wastewater Collection, and 6. Wastewater Treatment. This is just one example, but this is not an exhaustive list. The City of Gresham has added what it claims to be a temporary police, fire, and park and recreation fee to their utility invoicing. The City of Everett has a charge on their utility bill for landfill fees. Tri Cities and Moses Lake have an emergency services charge on their utility billing. The City of Salem recently attempted to add street lighting and street maintenance to its list of fees and charges, but backed down under pressure from Commonwealth, MHCO, community owners, and community residents who protested their newly proposed fees which some considered to be a "tax". I'm sure there are also other examples which I have yet to learn about, but rest assured, new fees and charges are appearing with great regularity. The point is that we are under fire from the local municipalities which are attempting to circumvent the law by creating the equivalent of new taxes without them being referred to the voters as required by Oregon and Washington Law. Many of the newer communities that were developed in the late 80's and early 90's opened their communities with utility charges separate from the rent while still paying the master bill and collecting the individual consumption charges from the residents in addition to their rent. Since then, there has been a growing trend for communities which have recognized this better model to pass through utilities to the residents over time to get out from under the burden of playing "catch up". This is more equitable to your residents, promotes conservation, and will more clearly show your valued community residents exactly what these municipalities are charging and how quickly their charges are increasing. Perhaps then, the residents may direct their ire to the appropriate party and focus their concerns in the direction it belongs with the goal of helping influence the cities or at least making them think twice before adding new fees and charges. One final important point to consider, for decades residents and resident advocacy groups have lobbied for rent control in our states. We have successfully dodged those bullets each and every time, yet rent control bills surface every legislative session in one form or another. Imagine your state government passing legislation which restricts how much you can charge for the already affordable housing services you provide. Consider how much your utilities have increased over time and what would happen to your cash flow and the value of your community from not being able to recover 100% of this expense. Having utilities separate from the rent is a transparent pass through from the provider to the consumer, rather than a rent increase which would be restricted in some form, likely requiring justification with a potential review board. If you have any utilities which are included in your rent, I strongly recommend that you consider passing this expense through to your residents. Commonwealth has a solution for accomplishing all of this with minimal cost to you. Please stay tuned for more information about our recommended solution to help you protect the investment you have made in your business in next week's follow up article. If you have any questions or would like to discuss this, please feel free to contact me at 503.718.0622, Christy Mays - Washington Vice President at 425.952.2750, and/or Tom Petitt - Oregon Vice President at 503.718.0620 Article provided by Adam Cook, President of Commonwealth Real Estate Services. Adam joined Commonwealth in 1992 and has been particularly effective in utilizing his years of experience to improve the services we offer to our clients. During the past fourteen years, he has served as a board member in the Oregon community owner's trade association, Manufactured Housing Communities of Oregon (MHCO), helping to shape legislative efforts in Oregon. He served two years as the association's president.

Current Lending Climate for Manufactured Home Communities

By: Rachelle Menaker is a partner with Hart, King & Coldren's transactional practice group. I. INTRODUCTION: OVERVIEW OF CURRENT LENDING CLIMATE FOR MHP'S Everyone knows that interest rates in re- cent years - in the wake of the financial melt- down that occurred in the mid-2008 to mid-2009 timeframe - have been at historic lows. While in the past few quarters of 2013 rates have crept up slightly, interest rates are still favorable from a historical perspective. Clearly, none of us have crystal balls as to how long rates will remain at these relatively attractive rates. So no guarantees on the duration of this favorable market for interest rates can be made. Nevertheless, if you either own a mobile home park (MHP") and you're considering a refinance

Form 1099 and Protecting Your Investment

Form 1099 and Protecting Your Investment Article provided by Kathleen Landau, Accounting Manager for Commonwealth Real Estate Services since 2009. Kathleen brings over 20 years of accounting experience and knowledge to the Commonwealth team, and as a multi-site property owner herself, understands the unique needs facing property investors and small business owners. ### So before I give you another accounting rule we are enforcing, let me say the goal is to protect your investment! We live in a very litigious society and need to be aware of potential risks and ways to protect our assets. Commonwealth employees are insured through workers' compensation policies and also provided regular training regarding workplace safety. Another area we are striving to improve risk management and compliance is in the area of hiring contractors. When a contractor is hired, the onsite manager must obtain verification that the contractor is licensed, bonded, and insured. In addition, a Form W-9 must be provided for purposes of reporting non-employee compensation on a Form 1099-Misc at the end of the year. The downturn in the economy resulted in many contractors allowing their insurance and licensing to lapse. We are currently working on two projects to confirm all contractors are still in compliance. The first will be a "preferred vendor" list by location. Commonwealth is compiling lists by geographic areas of approved vendors so in an emergency situation your onsite manager or regional manager knows what vendors have up-to-date information on file. Secondly, we will be combining this vendor list with our accounting program to alert us when we need to update the insurance information. The reason to remind our customers of this policy is that some may have "tried and true" contractors that would not be eligible to work at the communities unless they can provide the necessary information requested OR become an employee to complete the task you wish to hire them for. I mention the latter as it is a legal remedy to tackling some of the small jobs that may be better served by hiring specialized temporary employees through agencies. Another option is hiring an individual on a task by task basis for their special skill. Commonwealth wants to be sure we are doing our best to protect your investment by limiting your risk exposure, both legal and financial, associated with contractors working at your communities. Another reminder is that we do send 1099-Misc forms to all contractors annually. The form 1099-Misc reports all non-employee compensation. Amounts paid for employee compensation are reported on a Form W-2. Employees cannot receive a 1099-Misc and Form W-2 from the same employer for similar work. In order to keep away from any proof of control issues, our company policy is to send a W-2 to all employees and make sure all compensation for that individual runs through payroll. All independent contractor payments are reported on a 1099-Misc.

Americans With Disabilities Claims (ADA) - Is There a Target on Your Back?

American With Disabilities Claims (ADA) - Is There a Target on Your Back? By: John Pentecost, a partner with Hart, King & Coldren On July 26, 1990, President Bush signed into law the Americans with Disabilities Act ("ADA"), The Americans with Disabilities Act Accessibility Guidelines (the 1991 Regulations"") were shortly thereafter developed to guide new construction and alterations undertaken by covered entities and established the minimum requirements for ""accessibility"" for disabled persons in buildings and facilities and in transportation vehicles. After more than twenty years

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