Question:  A resident wants to see their file kept by the landlord.  Does the landlord have to show the resident the file?

 

 

 

Senate Bill 599 sets out an entirely new section of the ORLTA allowing tenants to use their dwellings as “family child care homes.” A landlord may not prohibit the use provided that the tenant has obtained the proper certification under ORS 329A.280 or ORS 329A.330, and has provided notice to the landlord of the tenant’s intent to operate a child care home.

 

Modifications. A landlord is permitted to require the tenant to pay in advance for costs of modifications necessary or desirable for the tenant’s use, certification or registration of the dwelling as a family child care home, even if it is not required of the landlord under ORS 90.320 or the rental agreement.

 

Prohibitions. A landlord may prohibit use as a family child care home if it will violate zoning restrictions or an association’s governing documents. Likewise, a landlord may prohibit any use which is not allowed under the rules of the Early Learning Council, the regulating body for in-home child care facilities.

 

Liability Protection. Family child care homes are not required to carry liability insurance unless the landlord specifically requires it. The landlord may require that the tenant running the child care home provide protection for the landlord, property owner or the association in the following manner:

• If uninsured: Child care provider must require that parents sign a document acknowledging that the landlord, owner and/or association is not responsible for harm to children or guests connected to the family child care home. This document also must acknowledge that the family child care home does not carry liability insurance for losses to their children or guests.
• If insured: Landlord may require that the child care home carry a reasonable surety bond or liability policy (in addition to renters insurance under ORS 90.222) covering the children and guests. The policy must provide coverage for injuries sustained related to negligence of the tenant or tenant’s employees, and the policy must name the landlord, property owner, or association as an additional insured.

 

Housing for Older Persons. The tenant may not operate a family child care home if the dwelling in question qualifies as housing for older persons under ORS 659A.421.

HB 3443 adds “bias crime” as defined by ORS 147.380, ORS 166.155, and ORS 166.165 to a number of different statutes in the ORLTA. The term “bias crime” is added to all statutes that previously addressed tenant-impacts of domestic violence, sexual assault and stalking. Terminations for domestic violence, sexual assault, bias crime, and stalking are extremely detailed. Landlord should consult their attorney before taking any termination action regarding allegations of the aforementioned criminal acts.

 

ORS 90.100 – The term “bias crime” is added to the ORLTA definitions section. A bias crime is defined as the commission, attempted commission, or alleged commission, of an offense as described below:

 

ORS 166.155 (1) A person commits a bias crime in the second degree if the person:

(a)  Tampers or interferes with property, having no right to do so nor reasonable ground to believe that the person has such right, with the intent to cause substantial inconvenience to another person because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin;

(b) Intentionally subjects another person to offensive physical contact because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin; or

(c)  Intentionally, because of the person’s perception of race, color, religion, gender identity, sexual orientation, disability or national origin of another person or of a member of the other person’s family, subjects the other person to alarm by threatening:

(A) To inflict serious physical injury upon or to commit a felony affecting the other person, or a member of the other person’s family; or

(B) To cause substantial damage to the property of the other person or of a member of the other person’s family.

 

ORS 166.165 (1) A person commits a bias crime in the first degree if the person:

(a)  Intentionally, knowingly or recklessly causes physical injury to another person because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin;

(b) With criminal negligence causes physical injury to another person by means of a deadly weapon because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin; or

(c)  Intentionally, because of the person’s perception of another person’s race, color, religion, gender identity, sexual orientation, disability or national origin, places another person in fear of imminent serious physical injury.

 

ORS 90.325 is amended to clarify that tenants may not be held responsible for damages to the premises caused by the perpetrator of a bias crime. To avoid liability for damage the tenant may be required to provide verification that the tenant or a member of the tenant’s household was a victim of a bias crime.

 

ORS 90.445 is amended to clarify that perpetration of a bias crime against a household member who is also a tenant is grounds for 24-hour termination notice. The landlord may evict the perpetrator while still leaving other tenants on the lease. If the perpetrator of the bias crime does not leave the premises, the landlord may seek a court order to remove them under ORS 105.128 without terminating the other tenants in the unit.

 

ORS 90.449 is amended to state that a landlord may not terminate or fail to renew a tenancy, serve a notice to terminate a tenancy, bring or threaten to bring an action for possession, increase rent, decrease services or refuse to enter into a rental agreement with:

• A person who is or has been a victim of a bias crime;
• A person who has violated the rental agreement or the provisions of ORS 90.449 because they have been the victim of a bias crime;
• Because of criminal activity or emergency response related to a situation in which the tenant or applicant is a victim of a bias crime.

Additionally, a landlord may not impose different rules, conditions or standards or selectively enforce rules, conditions or standards against a tenant or applicant on the basis that the tenant or applicant is or has been a victim a bias crime.

 

However, landlords may terminate the tenancy of a victim of a bias crime if the landlord has previously given the tenant a warning about the behavior of the perpetrator and:

• the tenant has allowed the perpetrator to remain on the premises while an imminent or actual threat to others; or
• the perpetrator is an unauthorized occupant, and the tenant has allowed them to remain on the premises without the permission of the landlord.

 

If a tenant mounts a successful defense to an eviction action under ORS 90.449 the tenant will not be entitled to a prevailing party fee and/or attorney fees costs or disbursements if it the landlord can demonstrate

• that at the time the action was initiated the landlord did not know, or have reason to know, that the action was based on a bias crime incident; and
• upon discovering that the action was based on a bias crime incident, the landlord promptly removed all others except the perpetrator from the action.

 

ORS 90.453 is amended to:

• add “bias crime” to the definition of non-perpetrating immediate family members of a crime victim;
• add the phrase “employee of the Department of Justice division providing victim and survivor services” to the definition of a “qualified third party;”
• include the phrase “a copy of a federal agency or state, local or tribal police report regarding [a] bias crime” to the definition of “verification;”
• expand the definition of “victim service providers” to include nonprofit agencies that address bias crimes; and
• provide that a tenant who wishes to terminate their own lease due to being the victim of a bias crime needs to provide either a valid order of protection or verification of a bias crime committed against the tenant within 90 days of the self-termination notice.

 

The Qualified Third-Party Verification Form under ORS 90.453(3) has also been amended to add “bias crime” to the list of harms against a tenant or member of their household.

 

ORS 90.456 specifies that the tenancy will continue for any tenants who have not been removed for perpetrating a bias crime or have not been released from the lease due to being a victim. Fees, deposits, and prepaid rent for victims and perpetrators are to be accounted for at the time the tenants surrender possession.

 

ORS 90.459 adds “bias crime” to the list of harms for which a tenant may provide actual notice and request a change of locks. Verification is not required. If the perpetrator is also a tenant the landlord must see a court order removing the perpetrator before changing the locks.

ORS 90.767 is amended to specify that unless specified in a mediation policy created under this statute, or agreed to by all parties, no one, except the victim, may initiate mediation of a dispute regarding allegations of a bias crime.

 

Introduction. SB 611 amended the Rent Cap law. It became effective on July 6, 2023, meaning that all rent increase notices on or after that date had to conform to the new law. Section 5 of SB 611 applies to mobile home tenancies. It is substantially similar to the existing statute (ORS 90.600) but clarifies things a bit. The only major change is that there is now a rent cap set at 10%.

 

By Bill Miner and Seth (Moe) Tangman

First, the bad news: Recent uptick in class action lawsuits puts manufactured home park landlords at risk of damages for technical statutory violations.

There has been an uptick in class action lawsuits filed by manufactured home tenants related to submeter or pro rata utility billings passed through from landlords. The recent spate of lawsuits seek damages for noncompliance with statutory invoicing requirements, irrespective of whether tenants were actually overcharged for utilities, or whether any invoicing deficiency is harmless.

ORS 90.560 et seq. governs a manufactured home park landlord’s ability to charge manufactured home tenants for utilities in the State of Oregon and sets forth procedures and billing requirements for submeter or pro rata utility billings to which landlords must comply. ORS 90.582(3)(a)&(b) states that if a landlord “fails to comply with a provision of ORS 90.560 to 90.584, the tenant may recover from the landlord the greater of: . . .One month’s rent; or . . .Twice the tenant’s actual damages, including any amount wrongfully charged to the tenant.” This penalty applies irrespective of whether a tenant actually suffered any overbilling damages or if the landlord’s failure to comply with the invoicing requirements were minimal and otherwise harmless.

Now the good news: The Oregon Supreme Court recently held that the proper measure of damages under ORS 90.582 is not one month’s rent for each violation; rather it’s the greater of one month’s rent or twice the tenant’s actual damages.

In Shephard Investment Group, LLC v. Ormandy, 371 Or 285 (2023), the Oregon Supreme Court was  asked  to  determine  the  proper  calculation  of  damages  that  may  be  awarded  to  a  tenant,  following  multiple instances  of  landlord  noncompliance  with  certain  utility  billing  requirements  that  repeated  each  month,  over  a  series of months. ORS 90.315 governs the inclusion of utility or public service charges such as for sewer or water service, in non-manufactured home park rental agreements. ORS 90.562 (which applies to manufactured home park tenancies) is substantially similar to ORS 90.315.

Both statutes require  landlords  to  “disclose  to  the  tenant in writing at or before the commencement of the tenancy any utility or service that the tenant pays directly to a utility or service provider that benefits, directly, the landlord or other tenants.” Both statutes state that a landlord “may require a tenant to pay to the landlord a utility or service charge or a public service charge that has been billed by a utility or service provider to the landlord”, also known as “pass-through” billing. However, the statutes condition pass-through billing upon a number of procedural requirements, such  as  billing  the  tenant  within  30  days,  setting  out  the  utility  or service  charge  separately  from  rent,  and  providing copies of the service provider’s bill or an opportunity to inspect it to a tenant. If a landlord engages in pass-through billing for public service charges without having met all of the conditions  of  the statutes,  a  tenant  may  recover  “an  amount  equal  to  one  month’s  periodic  rent  or  twice  the  amount  wrongfully  charged  to  the  tenant,  whichever  is  greater.” 

In this case, the landlord  brought  an eviction action  against the tenant to  recover  possession  of  the landlord’s premises. In response, the tenant alleged a counterclaim that landlord  had  failed  to  comply  with  certain  utility  billing  requirements  found  in  ORS  90.315(4)(b).  Specifically, the tenant alleged that, over the previous  year,  landlord  had  failed  to  (1)  timely  bill  him  in  writing for each month’s utility charges, as required under ORS  90.315(4)(b)(A);  and  (2)  provide  him  with  an  explanation  of  the  “pass  through  charges”  in  either  the  written  rental  agreement  or  separate  billings,  as  required  under  ORS  90.315(4)(b)(B). The  trial  court  agreed  with  tenant,  concluding  that  landlord  had  committed  12  separate  violations—one  per  month  - over  the  12  months within the one-year statute of limitations that governs  landlord-tenant actions. The trial court  awarded  tenant  statutory  damages  in  an  amount  equal  to  12  months  of  rent. 

The landlord appealed and the  Court  of  Appeals  reversed,  concluding  that  the  plain  text  of  ORS 90.315(4)(f)  showed the legislature had not intended for each landlord billing violation  to  be  subject  to  a  separate  sanction.

The Oregon Supreme Court affirmed with a thorough analysis, one that you may want to read, if you are so inclined. The crux of the Supreme Court’s logic is that while there may be substantive violations that are ongoing (i.e. not having specific language in a rental agreement and not placing particular language on a utility bill each month), the fact that they are ongoing is more procedural. The allegations complained of in this particular case were procedural, thus the Supreme Court held that the proper measure of damages is not one month’s rent for each violation, but there is one violation that is ongoing.

While this is a good case to address these types of claims, manufactured home park owners would be wise to reach out to their legal advisors who are well versed in manufactured home park law to review their billing practices to ensure that they are complying with the law.

 

Bill Miner, Partner-In-Charge Davis Wright Tremaine.  Experience includes defending and prosecuting business torts; breach of contract claims; disputes between and among members of limited liability companies; residential and commercial real estate matters, including landlord-tenant, title, lien, and timber trespass disputes; and probate and trust cases.

Moe Tangman is an attorney at Davis Wright Tramaine and applies his firsthand litigation experience to help his clients find business-oriented solutions tailored to resolve their commercial and corporate disputes. He represents clients in complex commercial litigation matters, particularly with respect to real estate, corporate governance, transactions, business tort, and contract disputes. Moe also maintains a robust class-action defense practice, with an emphasis in the data privacy and cybersecurity space.