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New Oregon Law. No. 4 above has been stricken,2 and the following rules (found at ORS 90.675(14)(d) and (e) and (15) of HB 3016,) will apply. On January 1, 2016, if the landlord follows these new laws, the tax collector and Department of Revenue (collectively "tax collector") will be required to cancel unpaid taxes in the following additional circumstances:

1. The landlord sells the home to a buyer who intends to occupy it in the community in which it is currently located, after:

a. Purchasing it at the abandonment sale; or
b. Acquiring it as a result of a written agreement with the tenant or tenant's

personal representative, etc. in accordance with ORS 90.675(23)(a) [currently (22)(a)].

1 If there are remaining funds after that, the balance is paid in the following order to any lienholder to the extent of any unpaid balance owed on the lien and the remainder to the tenant, together with an itemized accounting.
2 Currently in ORS 90.675(d)(A), (B), and (C). Note that HB 3016 also added the following text to No. 2: "...and the landlord disposes of the property."

2. The following additional conditions must be met:

1. There is a lien on the home for unpaid property taxes and special assessments owed to a county or to the Department of Revenue;

2. The landlord must prepare and sign and affidavit or declaration (hereinafter "Affidavit of Compliance") in the form set forth on MHCO Form 31A, with the county tax collector or the Department of Revenue (hereinafter, "tax collector"). Upon filing this Affidavit of Compliance, the county tax collector will provide title to the home for the landlord to give to a buyer at the time of the sale.

3. After the sale, the landlord must file a second Affidavit of Compliance in the form set forth on MHCO Form 31B, with the tax collector. It must be accompanied by:

   i. Payment of the amount remaining from the sale proceeds after the deduction of the landlord's claims and costs, up to the amount of the unpaid taxes or tax lien. The landlord may retain the amount of the sale proceeds that exceed the amount of the unpaid taxes or tax lien;

   2. Payment of any county warrant fees; and

   3. A third Affidavit of Compliance, this time from the buyer, in the form set

      forth on MHCO Form 31C, stating his/her intent to occupy the property in the community. Thereupon, the tax collector shall cancel all any remaining unpaid taxes or tax liens on the property.

Effect of New Law. The new law will permit landlords to sell abandoned homes with unpaid property taxes to persons who will reside in them at the community in which they are currently located. To the extent that the net sale proceeds (after deduction of the landlord's statutory claims and costs) are insufficient to pay the former resident's unpaid property taxes, the shortfall will be waived by the tax collector. If the sale proceeds cover more than the landlord's statutory claims and costs, and all of the unpaid taxes, the landlord may retain any excess.

Answer: After sending or delivering the 45-day abandonment letter, a landlord is required to store the home on the rented space and shall exercise reasonable care for it; and is entitled to reasonable or actual storage charges and costs incidental to storage or disposal. The storage charge may be no greater than the monthly space rent last payable by the tenant.

If a lienholder makes a timely response to a notice of abandoned personal property and so requests, the landlord is required to enter into a written storage agreement with the lienholder providing that the home may not be sold or disposed of by the landlord for up to 12 months. The storage agreement entitles the lienholder to store the home on the previously rented space during the term of the storage agreement, but does not entitle anyone to occupy it.

Note that the lienholder's right to a storage agreement arises upon the failure of the tenant or, in the case of a deceased tenant, the personal representative, designated person, heir or devisee to remove or sell the dwelling or home within the allotted time.

The lienholder must enter into the proposed storage agreement within 60 days after the landlord gives it a copy of the storage agreement. It is recommended that landlords include the storage agreement with the lienholder's copy of the 45-day letter, since the right to storage fees does not vest until the letter has been sent. The sooner the better.

The lienholder enters into a storage agreement by signing a copy of it and personally delivering or mailing the signed copy to the landlord within the 60-day period. The storage agreement may require, in addition to other provisions agreed to by the landlord and the lienholder, that:

• The lienholder make timely periodic payment of all storage charges accruing from the commencement of the 45-day period.
• A storage charge may include a utility or service charge, if limited to charges for electricity, water, sewer service and natural gas and if incidental to the storage of personal property.
• The storage charge may not be due more frequently than monthly;
• The lienholder pay a late charge or fee for failure to pay a storage charge by the date required in the agreement, if the amount of the late charge is no greater than for late charges imposed on other tenants in the community;
• The lienholder must thereafter maintain the home and space in a manner consistent with the rights and obligations described in the former tenant's rental agreement;
• The lienholder must repair any defects in the physical condition of the home that existed prior to into the storage agreement, if the defects and necessary repairs are reasonably described in the storage agreement and, for homes that were first placed on the space within the previous 24 months, the repairs are reasonably consistent with community standards in effect at the time of placement.
• The lienholder shall have 90 days after entering into the storage agreement to make the repairs. Failure to make the repairs within the allotted time constitutes a violation of the storage agreement and the landlord may terminate it by giving at least 14 days' written notice to the lienholder stating facts sufficient to notify it of the reason for termination. Unless the lienholder corrects the violation within the notice period, the storage agreement terminates and the landlord may sell or dispose of the property without further notice to the lienholder.
• A landlord may increase the storage charge if the increase is part of a community-wide rent increase for all tenants, the notice is given in accordance with ORS 90.600 (1) (the rent increase statute).

Note that during the term of the storage agreement the lienholder has the right to remove or sell the home. Selling the home includes a sale to a purchaser who wishes to leave it on the space and becomes a tenant, so long as the prospective tenant is approved by the landlord pursuant to ORS 90.680 (the tenant sale and approval process). The landlord may condition approval for occupancy of any purchaser upon payment of all unpaid storage charges and maintenance costs.

If the lienholder violates the storage agreement (whether by failure to maintain the space or pay the storage fees), the landlord may terminate it by giving at least 90 days' written notice to the lienholder stating facts sufficient to notify the lienholder of the reasons for the termination. Unless the lienholder corrects the violation within the notice period, the storage agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the lienholder.

After a landlord gives a termination notice for failure of the lienholder to pay a storage charge and the lienholder corrects the violation, if the lienholder again violates the storage agreement by failing to pay a subsequent storage charge, the landlord may terminate the agreement by giving at least 30 days' written notice to the lienholder stating facts sufficient to notify the lienholder of the reason for termination. Unless the lienholder corrects the violation within the notice period, the agreement terminates and the landlord may sell or dispose of the property without further notice to the lienholder.

A lienholder may terminate a storage agreement at any time upon at least 14 days' written notice to the landlord and may remove the property from the facility if the lienholder has paid all storage charges and other charges as provided in the agreement.

Upon the failure of a lienholder to enter into a storage agreement or upon termination of the agreement, unless the parties otherwise agree or the lienholder has sold or removed the property, the landlord may sell or dispose of the property without further notice to the lienholder.

The abandonment statute, ORS 90.675, does not directly address you question about what happens if a landlord has followed the above protocols and the lienholders rights have been legally terminated. It is my opinion that the language saying that the landlord may sell or dispose of the property without further notice to the lienholder should not be construed as if the remaining rules (regarding public or private sale, etc.) no longer apply to the lienholder. The landlord does not have to re-issue another 45-day letter, but should continue to follow the remaining sale/dispose protocols described in the statute, and should still recognize the rights of the lienholder to notification of the sale under ORS 90.725(10), and to any available proceeds pursuant to the distribution rules found at ORS 90.675(13).

Answer: First things first. If you simply want to get rid of Kris, you can immediately serve him with a no-cause eviction notice. Since it seems like he has been there far longer than a year, Oregon law requires a 60-day notice to evict. MHCO form 43 C is the form for you.

The "reasonable accommodation" request does raise a potential retaliation defense, however, so don't be too quick to ruin the holidays with an eviction notice. It would probably be best to give Kris a reasonable accommodation request form (MHCO Form 15). That form requires Kris to give the park information about his disability and get a medical provider or other specialist to sign off on the fact that he actually needs an accommodation. Assuming Kris returns the completed form, go ahead and do background checks on his guests (conduct and criminal check only, not credit history). If everything checks out, have his guests sign a temporary occupancy agreement (MHCO Form 25).

The reindeers are definitely a problem. If you're okay with them being there, have Kris fill out a pet agreement (MHCO Form 21). If you want the beasts out, you can give a 10-day pet notice forcing Kris to remove Rudolph and Co. if the herd is capable of causing damage to persons or property. (MHCO doesn'thave this particular form, so contact attorney Lionel Hutz at "I can't Believe It's a Law Firm!" in Springfield.)

The parking is easy to remedy if you have clearly posted signs stating that street parking is not allowed and unlawfully parked vehicles are subject to tow. You should also have local towing company signs posted. If you fit these requirements, call the tow company and they will put that eyesore in the impound lot.

The wild card here is if Kris happens to break into your park office and leaves a lump of coal in your stocking. If you can prove it was him, you could likely issue a 24-hour eviction notice for either substantial damage to the premises if he breaks the chimney, or perhaps for outrageous behavior for forcing his way into the building. And, if Kris instead happens to leave you presents that cause your heart to grow 3 sizes, you can probably get him with a 24-hour notice for inflicting substantial personal injury.

Happy Holidays to All!

Answer: As to your question regarding the assessment of a late fee, here is what ORS 90.260(1) provides:

(1)A landlord may impose a late charge or fee, however designated, only if:

(a)The rent payment is not received by the fourth day of the weekly or monthly rental period for which rent is payable; and

(b)There exists a written rental agreement that specifies:

(A)The tenant's obligation to pay a late charge on delinquent rent payments;

(B)The type and amount of the late charge, as described in subsection (2) of this section; and

(C)The date on which rent payments are due and the date or day on which late charges become due. (Underscored text in italics are mine.)

I know of no other statute that directly addresses this issue. So assuming that:

• Your Rental Agreement makes it clear that the rent check must be received on or before the fourth of the month;
• The type and amount of late charge; and
• The date (a) rent payments are due (e.g. the first of the month), and (b) when the late charge would be due (e.g. the fifth of the month, or later),

I would conclude that you may assess a late charge where residents mail in their rent checks, but they are not received until the fifth of the month or later.

However, a word of caution: If you are going to institute this policy, it must be done uniformly and consistently for all residents. I suspect that some folks may believe that by mailing their checks on the fourth (based upon the postmark), their rent payment is timely, i.e. no late charge will be assessed. You want to make sure your residents understand that since they have the option of manually delivering their rent to the manager's office (or presumably dropping it into a box when the office is closed), that selecting the use of the mails requires that the rent is received - not simply deposited in a mailbox - could result in the assessment of a late charge if the check is received on the fifth or later.

Note, that ORS 90.394(4) provides:

(4) Payment by a tenant who has received a (72-hour or 144 hour) notice *** is timely if mailed to the landlord within the period of the notice unless:

(a)The notice is served on the tenant:

(A)By personal delivery as provided in ORS 90.155(Service or delivery of written notice) (1)(a); or

(B)By first class mail and attachment as provided in ORS90.155 (Service or delivery of written notice) (1)(c);

(b)A written rental agreement and the notice expressly state that payment is to be made at a specified location that is either on the premises or at a place where the tenant has made all previous rent payments in person; and

(c)The place so specified is available to the tenant for payment throughout the period of the notice. (Underscored text in italics are mine.)

Although this statute does not expressly say that proof of mailing is determined by the postmark (and I have not researched this based upon Oregon case law), for purposes of the payment of property taxes in Oregon, as well as state and federal income taxes, the postmark date is what is relied upon in determining whether the payment was timely. In other words, by analogy (without the benefit of legal research), I would conclude that timely mailing, based upon the postmark, does work for payment of rent following the issuance of a 72-hour or 144-hour notice of nonpayment under ORS 90.394. To be absolutely certain, however, you should obtain a legal opinion, based upon legal research, from your own attorney.

As to the second part of your question, i.e. what costs and fees you may assess to a resident, who tenders rent after the expiration of a 72-hour or 144-hour notice, if the eviction is actually file, the answer is contained in ORS 90.255:

In any action on a rental agreement or arising under this chapter, reasonable attorney fees at trial and on appeal may be awarded to the prevailing party together with costs and necessary disbursements, notwithstanding any agreement to the contrary. As used in this section, prevailing party means the party in whose favor final judgment is rendered. (Underscored text in italics are mine.)

ORCP 68(A)(1) Provides:

Attorney fees. "Attorney fees" are the reasonable value of legal services related to the prosecution or defense of an action.

ORCP 68(A)(2) Provides:

Costs and disbursements. "Costs and disbursements" are reasonable and necessary expenses incurred in the prosecution or defense of an action, other than for legal services, and include the fees of officers and witnesses; the expense of publication of summonses or notices, and the postage where the same are served by mail; any fee charged by the Department of Transportation for providing address information concerning a party served with summons pursuant to subparagraph D(4)(a)(i) of Rule 7; the compensation of referees; the expense of copying of any public record, book, or document admitted into evidence at trial; recordation of any document where recordation is required to give notice of the creation, modification, or termination of an interest in real property; a reasonable sum paid a person for executing any bond, recognizance, undertaking, stipulation, or other obligation therein; and any other expense specifically allowed by agreement, by these rules, or by any other rule or statute. The court, acting in its sole discretion, may allow as costs reasonable expenses incurred by a party for interpreter services. The expense of taking depositions shall not be allowed, even though the depositions are used at trial, except as otherwise provided by rule or statute. (Underscored text in italics are mine.)

Based upon the above, it is my opinion that the cost of the private company you employ to prepare the eviction complaint, would not normally be recoverable, even if you filed the complaint. Without addressing whether this is the "unlawful practice of law", I will note that if you paid your attorney to perform this service, it would be recoverable as attorney fees, if the complaint was filed. The only exception might be if you had a specific provision in your Rental Agreement that expressly permitted it as a recoverable court cost. I say "might", since the court has a certain amount of discretion in the matter of the amount of costs, fees, and disbursements it will award, and may or may not permit it.

If you file the eviction, but reach a settlement with the resident for payment of your court costs, attorney fees, and disbursements, you may have to enter into a Stipulated Judgment of Restitution, permitting the resident to pay these additional costs over a period of time.

If no eviction is filed, i.e. the resident tenders rent after the running of the 72-hour or 144-hour written notice of nonpayment, but before the filing of a complaint in court, you cannot condition your acceptance upon the simultaneous payment of late charges. And since you have not filed in court, the best you can expect is to recover late charges through the use of a 30-day notice under ORS 90.630(1). Additionally, remember that if the resident is a serial later payor, you may issue a 20-day non-curable notice of termination, under the 3-strikes provisions of ORS 90.630(8).

Answer: Under ORS 90.675(20), death of a resident living alone triggers the abandonment procotols.

1. First you need to determine if there is a personal representative ("PR") named in a will or appointed by a court to act for the deceased tenant. If not, is there a person designated in writing by the tenant to be contacted in the event of their death. (Of course, the best practice is to have this information, in advance, for all residents living alone.)
2. If you do not have any contact information, you may have to do some research, which means checking the decedent's rental application, or checking with neighbors. My experience is that when an older person passes away, relatives and others come out of the woodwork. Eventually you will need to identify some person who is willing to assume responsibility for the decedent's property.
3. There is such a thing as a Small Estate Probate, and most counties have the available forms. That would be the best approach for the responsible person to go through.
4. However, note that as a landlord/manager, your job is to get the space re-rented, either by a sale of the home to an approved resident, or removal of the home and re-siting of another.
5. The 45-day abandonment letter must be sent by first class mail to the deceased tenant at the premises, and personally delivered or sent by first class mail to the PR or designated person, if actually known to you. (Note: The 45-day letter must refer to the personal representative or designated person, instead of the deceased tenant.)
6. If the PR or designated person, or other person entitled to possession of the property, such as an heir, responds to you by actual notice (E.g. verbal contact, phone call, email, fax, etc.) within the 45-day period set forth in the 45-day letter, and requests to enter into a written Storage Agreement, you must do so.
7. The written Storage Agreement should provide that the home and personal property may not be sold or disposed of for up to 90 days, or until the conclusion of any probate proceedings, whichever is later.
8. The written Storage Agreement entitles the PR or designated person to store the personal property on the space during the term of the agreement, but does not entitle anyone to occupy the home. You should secure it, even if it means changing the current locks. You duty commences the moment you send the 45-day letter.
9. If a written Storage Agreement is signed by yourself and the responsible party, you may not enter into another such agreement with the lienholder until the signed until the agreement with the personal representative or designated person ends.
10. During the term of the Storage Agreement, the PR or designated person has the right to remove or sell the home and personal property (including a sale to a purchaser, or a transfer to an heir who wishes to leave it on the rented space and become a tenant - subject to the approval of background information that you have as a landlord or manager under ORS 90.680).
11. You may condition approval for occupancy of any purchaser or heir upon payment of all unpaid storage charges and maintenance costs.
12. If the PR or designated person violates the signed Storage Agreement, you may terminate it by giving at least 30 days written notice stating facts sufficient to notify him/her of the reason for the termination. Unless the PR or designated person corrects the violation within the 30-day period, the Storage Agreement will be terminated, and you may sell or dispose of the home and property without further notice to them.
13. Upon the failure of a PR or designated person to enter into a written Storage Agreement, or upon termination of the Storage Agreement, you may sell or dispose of the property pursuant to the statute (ORS 90.675) without further notice to them (unless the parties otherwise agree, or the PR or designated has already sold or removed the property).

Answer: All good questions, and ones that I have not addressed for some time. There are several statutes that come into play:

90.514 Disclosure to prospective tenant of improvements required under rental agreement.

(1) Before a prospective tenant signs a rental agreement for space in a manufactured dwelling park or for a converted rental space, the landlord must provide the prospective tenant with a written statement that discloses the improvements that the landlord will require under the rental agreement. The written statement must be in the format developed by the Attorney General pursuant to ORS 90.516 and include at least the following:

(c) Identification of the improvements that belong to the tenant and the improvements that must remain with the space.

90.730 Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition.

(7) The landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:

(a) The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;

(b) The agreement does not diminish the obligations of the landlord to other tenants on the premises; and

(c) The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated.

90.740 Tenant obligations. A tenant shall:

(1) Install the tenant's manufactured dwelling or floating home and any accessory building or structure on a rented space in compliance with applicable laws and the rental agreement.

In summary, what these statutes, and other in ORS Chapter 90 mean, is the following:

• When the landlord rents a space, it includes all pre-existing structures located on the space, such as carports and sheds.
• Does this mean the carport or shed must be maintained by the resident? In my opinion, not unless the rental agreement or rules provide otherwise. And if they so provide, it must be clearly disclosed at the commencement of the tenancy. If the roof leaked and the resident's belongings were damaged, the landlord could have liability.
• If a landlord wanted to transfer ownership of the carport or shed, the arrangement should be clearly documented, including the duty to maintain, and the right to remove upon vacating the space.
• In terms of a "downside" I see very little so long as the responsibility going forward is clear; on the other hand, I see a "downside" in doing nothing, and then each side expects the duty of maintenance belongs to the other - and as pointed out above, if the structure leaks or has a fire, etc., the landlord could have liability.
• When a space changes hands, and you want to transfer the maintenance responsibility at that time, you can do so, as long as it's clear and fair. You cannot, for example, require that a shed that has maintenance problems, be rebuilt or be repainted.
• On the issue of reducing the rent, ORS 90.730(7), cited above, does refer to adequate consideration if the maintenance responsibility is shifted from the landlord to the resident. That may be true where you don't transfer ownership of the structure to the resident. But if you do transfer ownership, and the resident, that is adequate consideration (in my opinion), so long as it is in good condition, and the arrangement was not done solely to avoid having to perform repairs. I would want to make sure that the structure was in good condition at the time, fully inspected by the resident, and the transaction clearly documented.
• As for the sharing of carports, one owned and the other not, it would be nice to get clarity on this between the two residents. The same rules apply, i.e. if the structure is in good repair, and the non-owner is willing to take ownership and assume maintenance responsibility, it would be better than what you have right now. As it stands, you, technically, have maintenance responsibility for the portion of the structure that is park-owned. This likely makes for confusion when repairs, such as roofing and painting are required.

Answer: Oregon case law says that holding a check an "unreasonable period of time" is deemed to be acceptance. What is a "reasonable" vs. "unreasonable" period of time? The answer is based on the facts of each case, prior conduct of the parties, and a host of other variables.

However, ORS 90.414 (Acts not constituting waiver of termination of tenancy; delivery of rent refund) gives us some idea what a court would conclude:

(1) If a notice of termination has been given by the landlord or the tenant, the following do not waive the right of the landlord to terminate on the notice and do not reinstate the tenancy:

(a) Except when the notice is a nonpayment of rent termination notice under ORS 90.394, the acceptance of rent if:

(A) The rent is prorated to the termination date specified in the notice; or

(B) The landlord refunds at least the unused balance of the rent prorated for the period beyond the termination date within 10 days after receiving the rent payment.

(b) Except if the termination is for cause under ORS 90.392, 90.398, 90.405, 90.630 or 90.632, the acceptance of rent for a rental period that extends beyond the termination date in the notice, if the landlord refunds at least the unused balance of the rent for the period beyond the termination date within 10 days after the end of the remedy or correction period described in the applicable notice. (Underscore mine.)

Accordingly, under the circumstances you describe, I would conclude that ten days would likely be the outside period for holding a check without either depositing or returning. Although your question doesn'texplain why the rent checks were held, rather than deposited, I'm not sure it makes much difference. Unless there is an ongoing dispute with the resident, say due to an unapproved pet or occupant, good management practice is to either deposit the rent check or return it with an explanation, as quickly as reasonable possible.

Answer: So long as the park reasonably believes under all the circumstances that the tenant has left behind the RV with no intention of asserting any further claim to it, the park does not need to file an eviction action. Instead, the park can treat the RV as abandoned property and issue an abandoned property notice.

The abandonment process for RVs is similar to that for abandoned mobile homes. Under ORS 90.425, the park must issue an abandonment notice for the RV. The notice must state that: (a) The RV and any other property left behind is considered abandoned; (b) The tenant or any lienholder or owner must contact the landlord within 45 days to arrange for the removal of the RV; (c) The RV is stored at a place of safekeeping; (d) The tenant or any lienholder or owner may arrange for removal of the RV by contacting the landlord at a described telephone number or address on or before the specified date; (e) The landlord will make the RV available for removal by appointment at reasonable times; (f) The landlord may require payment of removal and storage charges; (g) If the tenant or any lienholder or owner fails to contact the landlord by the specified date, or after that contact, fails to remove the RV within 30 days, the landlord may sell or dispose of the RV; and, (h) If there is a lienholder or other owner of the RV, they have a right to claim it.

The park must send the notice to the tenant's park address and any other known address for the tenant. The park must also conduct a title search on the RV and send the notice to any listed lienholder or other owners. The notice must be sent by regular first class mail, except that lienholders must also be sent the notice by certified mail.

The good news is that after the park issues the abandonment notice, the RV itself can be removed from the rented space to open it up for a new RV tenant. The abandoned RV simply has to be stored in a "place of safekeeping," such as an on-site storage lot.

Finally, if the RV remains unclaimed after the 45-day period, the park can either throw away or give away the RV if the park estimates that the current fair market value is $1,000 or less, or so low that the cost of storage and conducting an auction probably exceeds the amount that could be realized from a sale. If the estimated value is more than $1,000, the park must hold an abandonment auction using the procedures described by the abandonment statute. (As usual, retain experienced legal counsel if unfamiliar with the abandonment process and procedures.)

Answer: One of the most common types of residential eviction is also the most misunderstood - the nonpayment of rent eviction. A good tenant's attorney can frequently retain possession for his/her client, even though they clearly failed to pay the rent when due. All it takes is a little familiarity with that labyrinthine set of statutes in the Oregon Residential Landlord Tenant Act, or "ORLTA."

It is common knowledge that unless the parties have agreed otherwise, rent is due on the first day of each month. Rent does not become delinquent until after the expiration of seven days, including the date rent is first due. An eviction cannot be filed until after the expiration of 72 hours' written notice. This means that the earliest a 72-hour notice may be delivered to the resident is on the 8th day of the month, and the earliest one may file for eviction is on the 11th day of the month, i.e. 72 hours hence.[1]

However, oftentimes it is not until the first appearance following the filing of the eviction that the landlord discovers that the resident has gone to an attorney and is now raising various counterclaims under ORLTA. Some of these counterclaims may be without any real factual basis, and may have been raised primarily to secure either more time or some other concession from the landlord.

Assuming that the resident either has the money to pay the rent, or can somehow gather it together prior to a trial, this is a battle that the landlord is almost sure to lose. The reason is found in the rent-tender statute, ORS 90.370. Essentially, this statute, and several cases that have construed it, permit the resident to tender the past due rent into Court, even though it was not paid during the 72-hour period set forth in the notice. At the conclusion of the case, if the Court finds that the amount tendered into Court covers the amount found to be due, the resident automatically retains possession.

Example: Landlord files an eviction against resident based upon the failure to pay monthly rent of $400. Resident files counterclaims alleging ORLTA violations, and claims that because of the deficiencies, the "market rent" (as opposed to the "contract rent", i.e. the amount due under the rental agreement) for the premises is only $100 per month - not $400 per month. Resident has had possession for seven month, six of which he paid the full rent that was due, and on the seventh month, i.e. the one for which the eviction was filed, he withheld the monthly rent. But he tendered the full $400 rent into court for the seventh month, and counterclaimed for $1,800, i.e. $300 for each of the prior six months' possession for which he "overpaid". Assuming that the counterclaims were made in good faith, here are the various scenarios:

1. Worst Case for Landlord: The Court finds in favor of the resident, awarding him a judgment for $1,800 (6 months X $300) plus costs and attorney fees.

2. Best Case for Landlord: Although the Court finds against the resident on his counterclaims, and finds that the amount due to the landlord is the full $400, since it has already been tendered into Court, the resident is allowed to retain possession, and may submit a request for recovery of his costs and attorney fees. This is because subsection (1)(b) of ORS 90.370 provides that "If no rent remains due after application of this section and unless otherwise agreed between the parties, a judgment shall be entered for the tenant in the action for possession. (Italics mine.) Thus, the resident is still the prevailing party and entitled to an award of attorney fees.[2]

The only exception to the "Best Case" scenario is where the landlord is able to convince the Court that the resident's counterclaims are improper and/or have been filed in bad faith. If so, the rent tender will do the resident no good, and if he loses his counterclaims, he will be evicted and become subject to a judgment for the landlord's costs and attorney fees.

So, when should the landlord fight to evict a resident for nonpayment of rent, where the resident has tender rent into Court? Only in the following situations: (a) Where the landlord is confident that he/she can convince the Court that the counterclaims were filed in bad faith; or, (b) Where the rent tender is believed to be inadequate and the resident's attorney does not realize that the shortfall could be tendered into Court so that no rent would remain due '_after application of this section... ." In virtually every other situation, the odds of winning a contested nonpayment of rent eviction where there has been a full rent tender are virtually nonexistent.[3]

[1] This analysis does not consider the 144-hour notice provisions of ORS 90.394(2)(b). However, the rationale is exactly the same whether the notice is based upon 72 hours or 144 hours. The only difference is the calculation of the time periods.

[2] ORS 90.255 provides: In any action on a rental agreement or arising under this chapter, reasonable attorney fees at trial and on appeal may be awarded to the prevailing party together with costs and necessary disbursements, notwithstanding any agreement to the contrary. As used in this section, prevailing party means the party in whose favor final judgment is rendered. (Italics mine.)

[3] These conclusions are based not only upon a reading of the statute, but also several well-established Oregon cases construing it.

Answer: I assume you are referring to a sale where you carry back the security obligation (as opposed to the buyer paying cash or securing third party financing).[1] In this respect, you are correct, subject to several limitations. MHCO worked extensively with the Oregon Department of Finance and Corporate Securities ("DFCS") and others to develop an exemption to the Oregon law that would permit park owners to engage in the sale of formerly abandoned homes to purchasers for the purpose of a primary residence without having to use a broker (referred to as a "Mortgage Loan Originator" or "MLO" under the new law). Here is a summary of the new exemption law which will be found in ORS 86A.203.

• Here are the rules for those licensed as a manufactured structure dealer under ORS 446.691.
  • They may offer or negotiate the terms of the loan three or fewer times in a 12 month period;
  • They must use a written sale agreement that complies with certain requirements, or with DFCS rules[2].
  • The dealer may not hold more than eight residential mortgage loans without securing a MLO license under ORS 86A.203(1). [Presumably, this means "at one time."]

• Here are the rules for those licensed as a limited manufactured structure dealer under ORS 446.706.
  • They may offer or negotiate terms of the loan five or fewer times in a 12 month period:
  • They must have an ownership interest in a manufactured dwelling park;
  • They must use a written sale agreement that complies with certain requirements, or with DFCS rules.
  • They may not hold more than twelve residential mortgage loans without securing a MLO license under ORS 86A.203(1). [Presumably, this means "at one time."]

Conclusion. I marvel at the complexity of these laws which have been implemented to "protect" consumers from creditors - especially small creditors, such as park owners selling formerly abandoned homes to fill a space and provide affordable housing. If these small transactions caused the credit and housing crisis of 2008 and the ensuing Great Recession, perhaps I could understand. But they didn'. What we're are seeing is a huge net of bureaucratic regulation that has been cast over even the smallest of transactions under the guise of consumer protection.

Going forward, my suggestion is for park owners to decide if: (a) They want to handle these transactions without the use of a MLO (which will add several hundred dollars to each sale) or (b) Go it alone. If the latter, my suggestion is to create the simplest of paper transactions, with a fair market rate of interest, no adjustable rates, no negative amortizations. Balloon payments are permissible. However, there is a limit on this safe-harbor. If you made more than four such carry-back loan transactions in the prior calendar year, an entirely different and more complex set of rules apply, and you should consider using either a MLO or an attorney qualified in such matters.

[1] The Federal SAFE Act and its state counterparts, have interpreted (incorrectly in my opinion) "loans" to include not just funding coming from a third party lender, but also seller-carryback transactions where the seller "carries the paper" and collects the periodic payments.

[2] The statute cited to for compliance, ORS 646A.052, et. seq. is antiquated and inadequate for residential housing today. Presumably, the DFCS will have to create a suitable form through rulemaking.