New Year - New Laws - Termination For Cause Under ORS 90.630 - Major Revisions to Forms 43, 43A, 43B, 43C , 43D - Querin Guidance

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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. 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. 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. 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.

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