Introduction.  As most MHCO members may remember, ORS 90.630 had a “one-size-fits-all” approach to tenant violations. There was a 30-day cure period for all violations of the law, rules or rental/lease agreement, and if not cured by the 30thday following delivery of the notice, the tenancy was terminated.

The problem with that approach was that some violations consisted of isolated single acts, such as speeding through the park in violation of the community rules. This raised the question, what to do about repeat violations withinthe 30-day period? As long as the conduct ceased before last day of the 30-day cure period, was a tenant in compliance with the termination notice? Without getting into the reasons why I believe such an approach was incorrect, the issue is now moot.

Revisions to ORS 90.630. Pursuant to the new Landlord-Tenant Coalition Bill, SB 586, ORS 90.630 has been amended to specifically deal with single, isolated violations that are notof a continuing nature (such as, for example, the failure to maintain the space, or exterior of the home).

Although MHCO has made the appropriate changes to its forms, members are encouraged to review them in advance of using them. The protocols are different and may take some getting used to. We now have two forms, (a) one for “continuing” violations, and (b) another for those that consist of a single, non-repetitive act. There are also some changes to the statute that apply to both types of violations. Here is a summary:

1. All violations for which a notice is issued must be “material”. Although this term is not defined in the legislation, suffice it to say, you (should) know it when you see it. An isolated failure to mow the front yard one week is not a “material” violation that should trigger a 30-day notice of termination. That is what clean-up notices are for. 

2. The 30-day notice now must separately designate a “termination date”. It is not sufficient to say that the tenancy will terminate if the violation continues past the last day of the 30-day cure period. The MHCO form has been appropriately revised.

3. Conduct is “ongoing” if:

1. 1. It is “constant or persistent or has been sufficiently repetitive over time that a reasonable person would consider the conduct to be ongoing”; and
   2. The violation does not involve a pet or assistance animal;
   3. If it is ongoing, the same rules apply as previously, i.e. there is a 30-day cure period (however now a separate “termination date” must be identified, which can simply be the date following the last day of the cure period – as long as it is specifically identified).

4. A critical difference with the separate conduct 30-day notice is that there are now two time periods.

1. 1. The resident has a cure period of “…at least three days after delivery of the notice.” If not so cured within that time (e.g. tenant continues to speed through park) the tenancy will terminate on a date at least 30 days following delivery of the notice. 
   2. Note: it will be important for management to specifically identify the date three or more days hence. Otherwise, the cure period would end on the designated termination date not less than 30 after the delivery of the notice (or 33 if sent by regular mail).

5. Similar to the ongoing violation, for the separate conduct violation, at least one possible method for correction must be identified.

6. The six-month period for the repeat violation (which, if it occurs, entitles management to issue a 20-day non-curable notice) has been corrected. 

1. 1. Previously, the 6-month period commenced from the date of delivery of the violation notice, which was effectively only a 5-month period. 
   2. The new law, and the new MHCO violation form, now begin 6-month period from the termination date designated in the notice. 

7. There were no other material changes to ORS 90.630, including the 3-strikes law.

Conclusion. On its face, the changes appear to address the isolated violation issue with a shortened cure period, and automatically terminating the tenancy within 30-days if not so cured. 

Since I was not present during the discussion of these changes at the Coalition, I cannot comment on the rationale that resulted in this approach. But I cannot help but feel that a resident who fails to cure within the 3-day period – and now has 30 days hang around the park before vacating – has little incentive to be on his/her best behavior. What more can management do to protect the safety and welfare of the other residents while the terminated resident remains in the community?  Perhaps the 24-hour notice provisions of ORS 90.396could be amended to address this issue.

Senate Bill 586 becomes law on January 1, 2020. It amends several landlord-tenant laws, but for purpose of this article, we will focus on the new mediation laws it enacted.

Participation. If any landlord or tenant initiate a request for mediation, participation is mandatory. 

Types of Disputes Subject to Mediation. Generally, they relate to landlord or tenant compliance with the rental agreement or with the provisions of  ORS Chapter 90 (Oregon’s Residential Landlord-Tenant Laws). Specifically, they may include the following: 

• Landlord or tenant conduct within the facility; and
• The modification of a rule or regulation under ORS90.610.

Types of Disputes Excluded From Mediation.Unless all parties agree otherwise, nopartymayinitiatemediationfor:

• Facility closures consistent with ORS90.645 or 90.671;
• Facility sales consistent with ORS 90.842 to 90.850;
• Rent increases consistent with ORS 90.600;
• Rent payments or amounts owed;
• Tenant violations alleged in termination notices given under ORS 90.394 (Nonpayment of Rent), and non-curable notices under 90.396 (24-Hour Notices) or 90.630(8) (3-Strike Notices);
• Unauthorized person in possession under ORS 90.403;
• Unless initiated by the victim, dispute involving allegations of domestic violence, sexual assault or stalking or a dispute between the victim and the alleged perpetrator; and
• Disputes arising after the termination of the tenancy, including under ORS 90.425 (Personal Property Abandonment), 90.675 (Manufactured Home Abandonment) or 105.161 (Writs of Execution).

Parks Required to Have a Mediation Policy.It must include the following:  

• The process and format to initiate mediation;
• The names and contact information, including thephone number and website address, for mediation services available through the referral program provided by the Housing and Community Services Department established under ORS 446.543 (2) and any other no-cost mediation service acceptable to thelandlord;
• Information explaining the following requirements:
  • It may be initiated by the landlord or tenant contacting the Housing and Community Services Department in their required format;
  • It may not resolve any matters except by the agreement of all parties; [Note: we interpret this to mean that neither party can be compelled to reach agreement on any matter against their consent. However, we do not interpret this to mean that both parties must agree in advance as to which topics will go to mediation (assuming they are not otherwise beyond the scope of the law)].
  • All communications from all parties are held strictly confidential and may not be used in any legal proceedings. 
  • Mediation may be used toresolve:
    • Disputes between the landlord and one or more tenants,initiated by any party; and 
    • Disputes between any two or more tenants, initiated only by the landlord.
  • A party may designate any person, including a non-attorney, to represent their interests, provided that the designee must have the authority to bind that party to any resolution of thedispute;
  • Must comply with any other provisions as the Housing and Community Services Department may require byrule; and
  • Parties must participate in mediation (a) by making a good faith effort to schedule mediation within 30 days after it is initiated, (b) attending and participating in mediation and (c) cooperating with reasonable requests of the mediator.

MHCO Form No. 4 (Mediation Policy).  This form summarizes Senate Bill 586, and should be given to all new residents after January 1, 2020.  A landlord may unilaterally amend a rental agreement or facility rules and regulationstoSB 586.  PCQ Comment: MHCO has a form (No. 4) available to its members to make the unilateral amendment for existing residents. If your current policy conflicts with the new law, or you simply want to update it, we suggest sending the unilateral amendment to current residents. For new residents, Form 4 should become a part of their rental agreement, rules, and statement of policy.

Pending Claims.After mediation has been initiated and while it is on going,any statute of limitations related to the dispute is suspended (aka “tolled”). Additionally, after the mediation has been initiated, a party may not file a legal action related to the dispute, including an action for possession under ORS105.110 (“FED”).

Continuing Duties During Mediation. The tenant must continue paying their rent. However, receipt of such payment is not subject to landlord waiver under ORS 90.412(2) so long as it is refunded (if appropriate) within 10 days following the conclusion ofmediation.

Miscellaneous.  SB 586 does not require any party to:

• Reachanagreementonanyof the issues submitted to mediation;
• Participate in more than one mediation session or participate for an unreasonable lengthoftimeinasession;or
• Waive or forgo any rights or remedies or the use of any other available informal dispute resolutionprocess.
• A mediator in the mandatory mediation must notify the Housing and Community Services Department as to whether the dispute was resolved - but may not provide the department with the contents of any resolution;
• If a party refuses to participate in good faith in a requested mediation or uses mediation to harass another party, the other party:
  • Has a defense to a claim related to the subject of the dispute for which mediation was sought;and
  • Is entitled to damages of one month’s rent against that party.

PCQ Note:Although unrelated to mediation, SB 586 also provides that the Housing and Community Services Department shall award grants to persons to provide legal representation to low-income facility tenants in addressing disputes involving legal matters arising under ORS Chapter 90;

Question:  I am confused on the use of rules violation notices.  Do I use a 20-day notice or 30-day notice?  Does the “three strikes law” apply?

By:

Brad Kraus, Attorney at Law, Warren Allen LLP

850 NE 122nd Avenue, Portland, OR 97230

Phone: (503) 255-8795     Fax: (503) 255-8836

E-mail: kraus@warrenallen.com

The 2019 legislative session brought several tough changes for Landlords. From rent control to the (near) complete obliteration of no cause rights, these new laws brought challenges for Landlords and decisions related to their property. The new laws also present new causes of action and/or defenses for tenants, often with punitive consequences for landlords who make the slightest misstep. While SB 608 received much of the attention of the past session, not much attention has been paid to HB 2530, scheduled to take affect on January 1, 2020. This new law provides further defenses for tenants related to Notices of Termination under the ORLTA and eviction actions.  

HB 2530 amends ORS 105.113, one of the statutes related to eviction actions. It also adds to the ORLTA, although it is unclear on where it will be placed in Chapter 90. The important piece of HB 2530 is that it will require Landlords to include with any Notice of Termination certain information related to veteran’s assistance. The relevant portions of the new bill state:

(1)Except as provided in subsection (3) of this section, a person who sends or serves a document listed in subsection (2) of this section shall include the following information with the document:

(a) A statement that if the recipient is a veteran of the armed forces, assistance may be available from a county veterans’ service officer or community action agency; and

(b)(A) Contact information for a service officer appointed under ORS 408.410 for the county in which the recipient lives and contact information for a community action agency that serves the area where the recipient lives; or

(B) A statement that contact information for a local county veterans’ service officer and community action agency may be obtained by calling a 2-1-1 information service.

(2) This section applies to the following documents:

(a) A notice of termination of tenancy under any provision of ORS chapter 90;

(b) A summons in an action under ORS 105.110 for forcible entry or detainer; . . . 

While the above information may not seem like much, it does present new defenses for tenants in any FED action. Oregon case law is clear that proper notice is a prerequisite to maintaining a FED action. Should any landlord fail to include the information described in Section (1)(a)-(b), they run the risk of a defective notice defense by the tenant in any FED trial. 

HB 2530 also requires that the same information be included in any summons prepared for the FED action. The failure to include that information presents the same pitfalls for Landlords, and any such failure may be met with a motion to dismiss for insufficient summons by a knowledgeable tenants’ attorney. Accordingly, if landlords prepare their own summons (or have a process server do so), it is important that they vet those documents for compliance with HB 2530.

The new law is scheduled to take effect on January 1, 2020. While Landlords may have some notices which will expire and terminate tenancies prior to the effective date, vetting and updating your forms now will remove all doubt and/or defenses related to HB 2530, should you need to file an FED on those documents afterthe first of the year. 

Question:  We have a resident that we would like to not renew on a long-term lease.  Their renewal is coming up in several months.  Do we have to provide the notice of lease expiration and the new documents (rules and regulations)?  Can we simply not renew?