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Those of us that have been associated with this housing form for a length of time have watched and embraced the evolution from trailer to mobilehome to manufactured housing. We are sometimes less passionate about recognizing the evolution from trailer park to today's communities. The key word is community. Whether we describe the housing type as a trailer, mobilehome, or manufactured home is less important than the fact we are talking about homes and communities.

Having inspected and consulted thousands of such communities over the years I have come to the conclusion it is not possible to manage a community. You can maintain the infrastructure such as the water and sewer system, the gas and electrical system and of course the streets, lighting, and drainage to mention the basic components. When you add people, management becomes impossible and leadership becomes a necessity.

So what is the difference between management and leadership? Let's start with the definitions. Management is defined as "The act of managing, supervising or controlling". I don't believe you can control or supervise your residents. Leadership is defined as "The art of leading others to deliberately create a result that would not have happened other- wise".

Rear Admiral Grace Murry Hopper stated it simply "you manage things; you lead people"

When we realize that many of our communities are home to more residents than some small cities in California it becomes clear that management becomes difficult and leadership becomes necessary.

Few of our communities have the staff and resources of our small municipalities. There is no police department, street department, public works, building, or fire departments, yet the needs are still there.

To be successful we need to value our property and our community. Good leadership draws on the community to assist in maintaining the property. A community has a vested interest in well maintained facilities and systems. A good leader will illuminate and celebrate that shared interest.

How do you lead a community?

Have a vision

What do you want your community to be? Communicate the vision at every opportunity. Be certain the community rules are clear and support the vision. One of the challenges of a leader is to communicate to their followers the direction and destination of the journey. Remember when you ask something of anyone, the eternal question is why.

Become more knowledgeable

There are an overwhelming number of laws and regulations that impact our communities. The community leaders need to be experts in this area. We have all heard that knowledge is power. That is very true. People seek out those with information. "The road to leadership is through knowledge".

Value your residents

Without residents or customers your community may be more peaceful, but will not survive. A successful community must value the residents. This sense of value must be clear and evident in every action you undertake. If you are able to convince all your residents that you value and care for their well-being you probably would have to do little more than rou- tine repairs. Unfortunately, it is not that easy to do, it takes commitment and hard work.

Be positive

Emphasize the great things about the community, first in your own mind and then with the residents. The positive conditions or actions include what is great now and what great plans are in the future. A word of caution on the future plans: don't ever promise what you cannot deliver.

Be proactive

Investigate and anticipate prob- lems or issues. There is a differ- ence between maintenance and damage control. Residents appre- ciate a quick concerned response to problems, but much prefer peace of mind. don't be shy about publicizing the actions you take to prevent problems or your efforts may go unnoticed. This is especially important if your cor- rective actions or improvements are disruptive. Let the residents know how your efforts are good for them, and that you care about their health and safety.

Be fair and consistent

This is sometimes a challenge. A demanding resident with a neg- ative attitude can often require more time and effort than their pleasant congenial neighbor. A good leader recognizes the obligation to lead all their followers. While residents come in all shapes, sizes and demeanors they must all be valued.

Be honest

Few failures are more damaging to a leader than the loss of credibility. don't promise what you can't or don't plan on delivering.

People will accept that you don't know the answer, but expect your answer if given to be accurate.

Communicate, communicate and then communicate

Neither the leader or follower is a mind reader. Some of the most difficult issues to resolve are those that are imagined. Make the com- munity rules and expectations clear.

Is it really possible to create or improve a sense of community? It is and it does not require large homes or a large number of homes. There are parks that contain singlewide homes that were built in the early 1960's and there are communities that contain al- most exclusively multi-wide manufactured homes on large lots. I have inspected both types of communities for compliance to the applicable health and safety standards. I have talked to residents in both types of communities. Some communities were not where most of us would want to live, but others that were not materially different had a sense of community pride that felt like home.

Where community leadership is missing I have heard resident comments such as "the management does not care", where you have community leadership I have heard comments such as "this is a great place to live and all my friends wish they lived here".

Begin your journey to a better community today. It will take work but as Coach John Wooden stated "Do not let what you can- not do interfere with what you can do."

This article was recently published in WMA's February 2016 "Reporter". MHCO would like to express our deep appreciation to WMA for allowing MHCO to upload this article to MHCO.ORG.

Jack Kerin is the owner of Kerin Construction and Code Consulting and serves as a well respected consultant to the manufactured housing community. He maybe contacted at 11749 Walmort Court, Wilton, CA 95693; 916.687.7224 Phone; and email: jkerin@frontiernet.net

Mistake #1: Rent increases

A lot of times owners act as if below market rent is the same as earning a merit badge. It isn’t. Having under market rent loses you money every month. If the property ever goes on the market, it will sell for less and maybe a lot less. Today a tenant isn’t going to move because the rent goes up to market. Most tenants know what the rents are at other mobile home parks (often having better market rent intel than the owner). They won’t be surprised when the rent goes up to market. If the owner is doing a good job of operating the mobile home park, higher rent won’t be cause to move. When doing a rent increase, include the rent survey for your market, showing the rent charged at other communities. Also, be sure to factor in the water, sewer and garbage, if included in the lot rent. The water and sewer are probably $30–$60 per month per house- hold, depending on the city, and the garbage is probably $9–$15 per month per occupied site. If you are paying for these, consider how you may pass these utilities through. Be sure to factor in an estimate of water, sewer and garbage for the owners that pay it or the tenants.

Mistake #2: Rent Survey

What should the rent be? Not that many owners do annual rent surveys. If you have a manager, that should be their job. If there are owners of multiple mobile home parks in your market, look to their rents as a benchmark of the real rent. After all, these companies have to report earnings to shareholders or investors. They can’t succeed by charging above market rents.

Mistake #3: Holding On Too Long

When you have a park owned home that isn’t selling, it’s time to let go, and get it sold or rented. Anyone that has been in this industry for a while and sells homes knows what it feels like to have an unsold mobile home that sits month after month with no offers. You market it, keep utilities on, pay insurance and cleaning, the staff shows it countless times and nothing. It’s time to cut the price (ouch!) or do whatever needs to be done to sell the home. Each month that passes is another month of rent you’ll never recover.

The same thing is true for mobile home park ownership. Sometimes the mobile home park property looks great on paper. After you actually own it, you find it’s not your cup of tea. Maybe it’s too far away from your office, the demand for homes isn’t good, or a major employer shuts down, to name a few reasons why investors sell a mobile home park. In Warren Buffet’s 2014 Letter To Investors, he freely writes about big mistakes he made early on with Berkshire Hathaway; mistakes that might have been deadly for the company. In fact, the Berkshire company (a textile company) which became the Berkshire of Berkshire Hathaway, closed 18 years after Mr. Buffet acquired it, and he writes, “During all of those 18 years, we struggled unremittingly, all to no avail. But stubbornness —stupidity—has its limits....I finally threw in the towel and closed the operation.” Mr. Buffet goes on to say that he knew the Berkshire company acquisition “... was a mistake. Having committed much of (the company’s) resources...I quickly compounded the error by continuing to invest in a business that eventually became the most costly of my career.” If the Sage of Omaha can admit to millions of followers that he blundered, then perhaps business owners and investors should take a page out of Mr. Buffet’s playbook and cut the cord when something isn’t working, be it a park owned home OR a park.

Mistake #4: Financing

There is a lot of refinancing and new loan action today. Why? The low interest rates plus the threat of rising interest rates are the reasons. The Federal Reserve has been making noise for what seems like years, about increasing the interest rates. As the economy improves and the jobless recovery continues to dissipate, the

Federal Reserve finally raised interest rates in late December of 2015. Not all lenders are the same though, and finding a lender, whether it be local, regional or national will make a big difference in both the amount financed (dollars to you!) and the ease of the transaction.

Mistake #5: Records

Today there is truly user friendly and effective software for mobile home parks. I use Rent Manager and so do a lot of other mobile home park owners. For your own peace of mind do yourself, your accountant, your manager and a buyer a big favor, and invest in good software (it’s not that much money). A couple of years ago, I hired a property manager with no accounting background. She took to Rent Manager like a duck to water. My accountant is also a big fan. Don’t be intimidated by upping your game with great software.

Mistake #6: Survey, Phase I and Appraisal

Once upon a time, when you acquired your property, you might have had the property surveyed, appraised and a Phase I (California) environmental assessment done. If you didn’t order these reports, whoever you bought from may have left them in the office or the survey may have been recorded. Try checking with the county recorder or county engineer. These re- ports will save you money and time if you ever need to update them, or your heirs or a buyer require them. It’s faster and cheaper, for example, if the land surveyor has an existing survey to start with.

Mistake #7: Water and Sewer

Please do something about this, both for your cash flow and the environment. These pesky leaks can be tough to find. Some of the large owners use American Leak Detection (Google it —they have regional offices). They are not cheap, but they will find your leaks and fix them. Water leaks are expensive; it is money you won’t ever recover. One time I sold a mobile home park where the owner knew he had a water leak to the tune of about an extra $2,000 per month. This was a small mobile home park. When he sold the park, a condition of the sale was to find the water leak(s) and fix them. By then, he really wanted to sell his park because his company (not the mobile home park business) was growing and the business re- quired his full attention. The upshot was that after losing at least $40,000 in water costs he hired two companies (the first company didn’t find it) about $3,000 to find the leak and another couple of thousand for the second company to fix the leak. The moral of the story is that you will never get back the wasted water bills, so it’s best to bite the bullet and find and fix the leaks.

Joanne Stevens is a real estate broker specialist in listing and selling mobile home parks and manufactured home communities throughout the U.S.

She can be reached at 319.378.6785 phone; 319.365.9833 fax; and email: joannestevens@ joannemstevens.com

This article was recently published in WMA's February 2016 "Reporter".  MHCO would like to express our deep appreciation to WMA for allowing MHCO to upload this article to MHCO.ORG.

Answer: You are referring to MHCO Form 35B "Manufactured Home Storage Agreement (With Homeowner)." Before addressing your specific questions, it is necessary to point out what this form is intended to do. Here are some that come quickly to mind: (a) A resident, living alone, moves out of the home and wants to sell it on site; (b) A person inherits or buys the home, but cannot be approved for occupancy due to the background check or their financial condition; (c) A resident, living alone, passes away, and the estate wants to sell it.

It is important to remember that this is a "storage" agreement not a "rental" agreement. In fact, it expressly disclaims a "landlord-tenant" relationship between the community and the home owner. Accordingly, the legal relationship is more akin to one in which a party stores their property in a commercial storage facility.

You should not treat a breach of the Storage Agreement as something that is remedied by going to FED court. Rather, the provisions of Oregon law dealing with statutory liens in ORS 87.152 et. seq. apply. This process can get very complicated, and I highly recommend that you secure the services of an attorney before proceeding.

Lastly, the MHCO Storage Agreement contains a provision for mandatory arbitration, in lieu of any other court or legal process. However, the box on the form must be checked in order for it to apply. The reason that this arbitration alternative exists is because it was believed (and still is) that the process mandated by the statutes might be better implemented for park owners through arbitration, which can be cheaper, faster, and easier - especially if the matter becomes contested.

The MHCO form does require that the home be maintained by the owner. Accordingly, you may wish to consider sending a notice to the owner demanding that they do the clean-up work or you will do so, and pass the charge on to them. I don't think the issue of payments and maintenance are the same. Accordingly, I don't believe there is a need to discontinue accepting payments. However, all of this needs to be handled carefully, and for this you should speak with your attorney.

Answer: The answer lies squarely in ORS 90.394 (Termination of rental agreement for failure to pay rent.) In summary, the statute provides as follows:

• You deliver to the resident 72 hours' written notice of nonpayment. You would use MHCO Form 42.
• You serve or mail the notice no sooner than the eighth day of the month (assuming rent is due on the first of the month).
• The Notice would specify the amount of rent that must be paid, i.e. the six months' unpaid rent increase sum, which, at $20/month, equals $120.
• You would specify the date and time by which the resident must pay the rent to cure the nonpayment of rent default.
• Payment by a tenant who has received a notice under this section is timely if mailed to the landlord within the period of the Notice.
  • If the Notice is to be personally served on the resident, payment is timely if made within at least 72 consecutive clock hours immediately following service, as provided in ORS 90.155 (1)(a);
  • If the notice is sent by first class mail and attachment, payment is timely if made by 11:59 PM, 72 hours or 144 hours, as the case may be, after the time started to run at 11:59 on the date the Notice was both attached and mailed, as provided in ORS 90.155 (1)(c);
  • If the Notice is mailed via regular first class mail, payment is timely if made within by 11:59 PM on the sixth calendar day following the date of mailing the Notice (i.e. 72 hours plus three additional days for mailing) as provided by ORS 90.155 and ORS 90.160.
• If the resident does not pay the $120 after proper service of the 72-hour notice, your only alternative is to file for eviction under ORS 105.105 et seq. I imagine if it comes to that, the matter will be settled in the hallway at the first appearance when the resident comes to understand you mean business.

The Fair Housing Amendments Act (FHAA) went into effect on March 12, 1989.  That Act amended Title VIII of the Civil Rights Act of 1968, which prohibited discrimination based on race, color, religion, sex or national origin in the sale, rental, or financing of residential housing.  The FHAA added two additional protected classes; (1) persons with disabilities and (2) families with children.  Children include persons under the age of 18 years.

Virtually all forms of “familial discrimination” became illegal under the FHAA, such as the refusal to rent to tenants because they had children; imposing different terms or conditions of rental depending upon whether they had children; discouraging persons from living in a manufactured housing community if they had children, etc.

The FHAA created certain exemptions, or “safe harbors,” from the prohibition against familial discrimination.  The primary one, embraced by many manufactured housing communities, was the 55+ age exemption.  On May 3, 1999, the Housing for Older Persons Act (HOPA) became effective.  HOPA substantially relaxed the earlier highly restrictive – and unworkable - requirements initially established by the FHAA for housing providers to qualify for the 55+ exemption.   Under the FHAA and HOPA, a housing provider may now, without fear of violating the law, legitimately refuse to rent or sell to persons with families, if the provider properly qualifies under the 55+ exemption.

Currently, in order to qualify for the 55+ exemption under the FFHA and HOPA, a community must:

1. Be intended and operated for persons age 55 or over.  This intent can be met by such things as (1) The manner in which the community is described to prospective residents; (2) Advertising designed to attract prospective residents; (3) Lease or rental provisions; (4) The written rules and regulations; (5) Consistent application of the rules, regulations and procedures; (6) Actual practices; and (7) Publicly posting statements describing the facility as a 55+ community.   The age verification procedures must be updated every two years.  This means maintaining a complete file on each space, including with the tenant application updated information, circulated every two years, confirming the names and ages of all persons who are currently residing in the home.
2. Have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical.  Generally, communities strive to be over 80%, since falling below 80% means immediate disqualification.  Does this mean that the 20% margin must be reserved for families with children?  The answer is “No.”  In fact, a 55+ community may to strive for 100% occupancy by persons age 55 or over.  Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age or older?  Again, the answer is “No.”  If desired, the community may increase the age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years.   Similarly, the community can make the 55+ requirement “more restrictive” e.g. by either saying EVERYONE has to be 55+ or that the minimum age must be OVER 55+.  The only limitation by the federal government is that the age requirement can’t be LESS restrictive, e.g. under 55, or less than 80% occupied. However, it is important for park owners and managers to make sure that all such age/occupancy requirements be properly reflected in the community’s rules and statement of policy – and be consistently applied. 
3. Publish and adhere to policies and procedures that demonstrate an intent to be operated as a 55+ community. This requirement is fairly self-explanatory.  The community must make sure that in all that it does, from its advertising, rules, rental agreements, and all other policies, always hold itself out in writing as a 55+ facility. 
4. Comply with HUD age verification of occupancy procedures to substantiate compliance with the requirement that 80% of the facility be intended to be occupied by at least one person age 55 or over. The law provides that the following documents are considered reliable for such verification: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older. 

When the FHAA was first enacted, it imposed an additional requirement mandating that all 55+ communities must have “significant facilities and services” meeting the needs of older persons.  This requirement quickly became a stumbling block for otherwise qualified housing providers from ever obtaining the exemption.  HOPA deleted that requirement, and imposed a transition period for facilities to attempt to meet the 80% requirement.  The period began on the effective date of the law, May 3, 1999, and ended one year later.  During that transition period, HOPA permitted communities that otherwise qualified – without the “significant facilities and services” requirement – to reserve space for 55+ applicants.  This meant that during the one year period, communities could legally decline to rent or sell to families without violating the FHAA.  However, communities that tried but failed during the one year transition, were then expected to commence renting and selling to families.

However, one major question still exists:  What about communities that, for whatever reason, did not qualify for 55+ status?  This would include those that tried but failed; those that never tried because they wanted to be a family facility; or those that were unaware of the HOPA transition period in the first place.  What if today, a community already has qualified under the 80% rule, but still holds itself out as a family facility?  Assuming that it does not discriminate in any respect against the existing families, nor against all those who have applied for occupancy, may it “convert” to a 55+ community, by holding itself out as such, and otherwise meet the HOPA requirements?  This is an open – but inviting  - question.  It would seem that if the community could meet the HOPA requirements in all respects (not because it discriminated in getting there, but simply by attrition of family occupants and the influx of more 55+ residents), it should be permitted to do so.  The process would be fairly simple:  Implement a rules change, combined with new published policies and age verification procedures, which confirm the 55+ status. 

One caveat:  Even though the Oregon landlord-tenant law does permit rules changes to implement material modifications in the parties’ bargain, there is a risk of possible argument by families in the community, complaining that they are now limited in the pool of available buyers for their homes.  However, it would seem that this risk could be remedied, by “grandfathering” those family residents in, thereby permitting them to sell their homes to other families.  This assumes, of course, that by doing so, the community would not jeopardize its 80%-20% ratio.  Before proceeding down this path, park owners are urged to contact their own legal counsel familiar with the FFHA and HOPA for advice and direction.

The above article is a discussion of the federal Fair Housing law governing 55+ communities.  The contents are not intended to constitute legal advice, and should not be relied upon by the reader as such.  All legal questions regarding this complicated and important law should be directed to legal counsel familiar with the area.

© Copyright 2006.  Phillip C. Querin.  No portion may be reproduced without the express written consent of the author.

Answer: Here is a summary of ORS 90.260, the late fee statute. It answers the questions posed above.

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

• The rent payment is not received by the fourth day of the period for which rent is payable; and
• There exists a written rental agreement that specifies:
  • The tenant's obligation to pay a late charge;
  • The type and amount of the late charge; and
  • The date on which rent payments are due, and the date on which late charges become due.

(2) The amount of any late charge may not exceed:

• A reasonable flat amount, charged once per rental period. "Reasonable amount" means the customary amount charged by landlords for that rental market;
• A reasonable amount, charged on a per-day basis, beginning on the fifth day of the rental period for which rent is delinquent. This daily charge may accrue every day thereafter until the rent (not including any late charge), is paid in full, through that rental period only. The per-day charge may not exceed six percent of the amount of the "reasonable lat amount", described above; or
• Five percent of the periodic rent payment amount, charged once for each succeeding five-day period, or portion thereof, for which the rent payment is delinquent, beginning on the fifth day of that rental period and continuing until that rent payment (not including any late charge), is paid in full, through that rental period only.

(3) In periodic tenancies (e.g. month-to-month), a landlord may change the type or amount of late charge by giving 30 days' written notice to the tenant.

(4) A landlord may not deduct a previously imposed late charge from a current or subsequent rental period rent payment in order to make the rent payment short so as to issue a 72-hour notice of nonpayment.

(5) A landlord may charge simple interest on an unpaid late charge at the rate allowed for judgments (9.00%) and accruing from the date the late charge is imposed.

(6) Nonpayment of a late charge alone is not grounds for termination of a rental agreement for nonpayment of rent, but is grounds for termination of a rental agreement for cause by using a curable 30-day written notice of termination. [Note: The landlord may identify the late charge on the 72-hour notice of nonpayment of rent, so long as it makes clear that the tenant may cure the nonpayment notice by paying only the delinquent rent, not including any late charge.]

The rule carried out a 2015 Oregon Legislature directive through Senate Bill 705 that the Oregon Department of Environmental Quality enact rule changes by the end of 2015, requiring an owner of a residential building or a person proposing a demolition of a residential building to have an accredited inspector perform an asbestos survey before demolishing that building.

The rules addresses growing concern among Oregonians about exposure to cancer-causing asbestos fibers, which can be released into the air as a result of improper handling or disposal of asbestos-containing materials. In addition, the temporary rules require the owner of a residential building or person performing a home demolition submit to the DEQ, upon DEQ's request, a copy of the asbestos survey report.

The rule changes offer three exemptions to the pre-demolition survey requirement:

• If the residential building was built after Jan. 1, 2004
• If all materials in a residential building is managed as asbestos-containing material
• DEQ may approve, on a case-by-case basis, a written request to waive the survey requirement. The written request must include supporting documentation that demonstrates, to DEQ's satisfaction, that a survey is not required. Under this exemption, no demolition may occur until DEQ has approved, in writing, the request for a pre-demolition survey waiver.

State of Oregon Department of Environmental Quality
Licensed Asbestos Abatement Contractors

This is a list of asbestos abatement contractors that have obtained a license from the Oregon Department of Environmental Quality. This list does not constitute an endorsement by the Department. Services provided and costs are solely determined between the abatement contractors and their customer.

Abatement Pro, Inc.

4149 S. Cubola Avenue Meridian, ID 83642 208-853-1789

Abatement Services, Inc.

PO Box 747 Beavercreek, OR 97004 503-765-5257

Alpine Abatement Associates, Inc.

PO Box 1557 Bend, OR 97709 541-388-2672

Asbestos Abatement, Inc.

PO Box 2593 Boise, ID 83714 208-345-3574

Asbestos Control Group, Inc.

19386 SW 55th Court Tualatin, OR 97062 503-692-5174

ATEZ, Inc.

PO Box 126 Harrisburg, OR 97446 541-995-6008

Cascade Insulation, Inc.

22356 Nelson Road Bend, OR 97701 541-388-2600

Envirocon, Inc.

PO Box 16655 Missoula, MT 59808 406-523-1150

Enviromex Contracting, Inc.

12435 Clow Corner Road Dallas, OR 97338 503-831-2000

Environmental Resources, Inc.

PO Box 5954 Salem, OR 97304 503-991-3545

First Response Environmental Services

PO Box 3323
Central Point, OR 97502 541-621-0911

Global Pacific Environmental

PO Box 2759 Vancouver, WA 98660 360-993-4479 503-223-4401

Gre-Energy Constructors, Inc.

PO Box 13218 Salem, OR 97309 503-877-1495

IRS Environmental of Portland

777 SW Armco Avenue Hillsboro, OR 97123 503-693-6388

IRS Environmental of Washington

PO Box 15216 Spokane, WA 99215 509-927-7867

Keystone Contracting, Inc.

417 NW 209th Street Ridgefield, WA 98642 360-887-0868

3 Kings Environmental, Inc.

PO Box 280 Battleground, WA 98604 360-666-5464

Koos Environmental Services, Inc.

PO Box 4068
Coos Bay, OR 97420 541-266-0511

Lake Oswego Insulation Company (1)

5930 SW Jean Road Lake Oswego, OR 97035 503-245-6460

Lake Oswego Insulation Company (2) Mid-Valley Office
27171 Clear Lake Road
Eugene, OR 97402

541-953-8301

Lodge Environmental, Inc.

2084 Roosevelt Blvd. Suite A Eugene, OR 97402 541-461-8001

Minority Abatement Contractors

3200 NE 65th Street Vancouver, WA 98663 360-750-1900

Net Compliance Environmental LLC

2112 E. 26th Street Vancouver, WA 98661 360-699-4015

Northstar CG, LP

10367 SE Helena Street Milwaukie, OR 97222 503-255-5999

Northstar Demolition & Remediation LP

404 N. Berry Street Brea, CA 92821-3104 714-672-3501

Northwest Abatement Corporation

7735 SE 68th Avenue Portland, OR 97206 971-263-9815

Oregon Abatement

4929 NE 35th Avenue Portland, OR 97211 503-740-9758

Oregon Environmental

558 SE 36th Avenue Hillsboro, OR 97123 503-710-0346

Pacific Environmental Group, Inc. (1)

PO Box 22306 Eugene, OR 97402 541-767-3770

Pacific Environmental Group, Inc. (2)

2302 Ermine Court SE Albany, OR 97322 541-926-8707

Pacific Northwest Environmental

19645 SE Sunnyside Road Damascus, OR 97089 503-658-6606

Pacific Technologies, Inc.

PO Box 4846 Boise, ID 83711 208-344-8668

Performance Abatement Services, Inc.

13600 NE 10th Avenue Vancouver, WA 98685 360-574-8400

Petrochem Insulation, Inc.

110 Corporate Place Vallejo, CA 94590 707-644-7458

Revised 6/17/15

Professional Minority Group, Inc.

27090 SE Highway 224 Eagle Creek, OR 97022 503-761-5924

Rhine Demolition, LLC

1124 112th Street East Tacoma, WA 98445 253-537-5852

RMCAT Environmental/BELFOR

12823 NE Airport Way Portland, OR 97230 541-261-6442

Rose City Contracting, Inc.

29791 SW Kinsman Road Wilsonville, OR 97070 503-685-9505

Safeway Services LLC

285 Liberty Street NE Salem, OR 97301 713-824-1730

SMAF Environmental LLC

PO Box 672 Prineville, OR 97754 541-447-5643

SPS Environmental Services

1201 S. Childers Road Orange, TX 77630 409-886-3959

Western States Environmental Services

PO Box 787
877 Beatty Street Medford, OR 97501 541-770-2482

W.L. Thomas Environmental, LLC

PO Box 8
Albany, OR 97321 541-928-5383

WM Dickson Company

3315 S. Pine Street Tacoma, WA 98409 253-472-4489

ZILCO NORTHWEST LLC

PO Box 1781
Beaverton, OR 97075-1781 503-519-1462

Revised 6/17/15

Checklist for Determining Contractor Qualifications

1. Regardless of how you may feel about a particular contractor, always ask for a list references from previous projects. That list should include persons willing to describe the reliability of the contractor and the quality of work performed by the contractor.

2. All asbestos contractors must have an Oregon DEQ asbestos abatement license and use only Oregon certified workers and supervisors.

3. You may also want to ask your contractor to provide air-monitoring data from previous projects done in accordance with Oregon OSHA or Oregon DEQ requirements. That information can also help you determine if the work habits and general procedures that contractor uses are acceptable.

4. All contractors must have written standard operating procedures and employee protection plans which include specific reference to Oregon OSHA medical monitoring and respirator training programs. In addition, the contractor must make available a copy of the Oregon OSHA and the DEQ asbestos rules. (Oregon rules: under OAR 340-248- 0005 through -0290.)

5. Contractors must also provide a list of any penalties that the contractor has paid due to not completing contractual requirements, because of cost overruns, and/or liquidated damages.

6. Any citations levied against the contractor by any Federal, State, or local government agencies for violations related to asbestos abatement should be identified by the contractor. Included with that information should be the name or project location, the date(s) of the project, and how the allegations were resolved.

7. Contractors should also supply a description detailing all legal proceedings, lawsuits, or claims that have been filed or levied against them or any of their past or present employees for asbestos related activities.

8. The contractor should also supply a list of all equipment that will be used for asbestos work. That list should include negative air machines, HEPA vacuums, the type of respiration equipment they will use, scaffolding, decontamination facilities, disposable clothing, etc.

1. Make sure that the rental agreement really applies to your situation.  The MHCO rental agreement comes in two flavors: (a) The month-to-month (or periodic") rental agreement

1. Make sure that the rental agreement really applies to your situation.  The MHCO rental agreement comes in two flavors: (a) The month-to-month (or “periodic”) rental agreement, and (b) the lease (or fixed term) agreement.  The difference is that the month-to-month agreement runs for 30 days at a time.  In the absence of termination, the periodic tenancy just “rolls over” month to month.  Regardless of which agreement is used, landlords renting or leasing spaces to residents in mobile home parks may generally not terminate them without cause.  However, a lease for at least two years carries a distinct advantage in that the park documents, i.e. the lease agreement and the park rules, may be automatically updated at the end of each lease term.  While there are certain limitations upon the landlord’s right to impose new park documents on the resident, it is clearly much easier to do under a lease than a monthly rental agreement. [2]  Also, landlords using a

fixed term lease agreement must expressly incorporate any rent increase provisions into the written agreement.  The rent increase statute, ORS 90.600, applies only to periodic (e.g. month-to-month) tenancies and not fixed term tenancies.  If the home located upon the space is a recreational vehicle rather than a manufactured home, landlords should not use the standard mobile home space rental agreement.  The reason is that the mobile home park section of the landlord-tenant law does not apply to recreational vehicles.[3]  When renting space for a recreational vehicle, landlords should use an appropriate RV rental form.

1. Make sure that the rental agreement is signed by all adult tenants who will occupy the space.  This not only financially obligates them under the agreement, but it makes it easier to enforce violations against rules offenders.  Do not permit occupancy of a home until the rental agreement has been fully signed by everyone.  Trying to get signatures after-the-fact can be difficult, if not impossible.

1. Make sure that the Statement of Policy, Rules, and Rental Agreement are given to the resident and properly receipted for.  Occasionally, residents deny receiving one or more of these documents.  However, the signed receipt by the resident is legal evidence of delivery of these documents.  ORS 90.510(9) provides that a signed receipt is a defense to a claim against the landlord for nondelivery of these documents.

1. Similarly, landlords should make sure that the rights they summarize in the Statement of Policy accurately reflect their rental agreement and rules.  When using the MHCO forms this is not a problem.  It could be, however, when different forms from different sources are used, and the Statement of Policy provides that the resident has (or does not have) certain rights that are not consistent with those found in the rental agreement or rules. The Statement of Policy is not intended to be a binding legal document.  It is supposed to merely summarize the rights and duties of the resident which are found in the rental agreement or rules.

1. Understand the rights given you under the rental agreement form.  Not knowing your rights can result in not enforcing violations, which can lead to a waiver of those rights.[4]

1. One of the more important provisions of the rental agreement form is the one which prohibits assignment, subletting or transfer of possession of the agreement or space without the landlord’s prior written consent.  Landlords should make sure that when a resident vacates, leaving a guest or visitor at the space, immediate action is taken to either terminate the tenancy or require that the occupant promptly apply for tenancy by filling out all required documentation.  Do not accept rent from the occupant, the ex-tenant, or on the occupant’s behalf, until the issue has been thoroughly resolved.

1. Be aware that the fire insurance provision does not apply unless it is specifically checked:  It requires that the resident must maintain a homeowner's policy of insurance that includes coverage for fire in an amount sufficient to replace the home, and permits the landlord to request a current copy of the policy.

1. Similarly, landlords should be sure to have the resident initial those portions of the rental agreement which require them to do so.  There are several such places found in the sections dealing with (a) sale of the home and (b) the resident’s legal obligations under the tenancy.  When these sections are not properly initialed, there remains an argument that it is not binding.  Although such an argument would not likely carry the day, it can be avoided entirely by simply making sure that when the agreement is signed, all internal provisions are properly completed, checked and initialed where appropriate.

1. The landlord’s rights upon a resident’s resale are very important and need to be fully understood by both parties.  One such section of the resale portion of the rental agreement provides that in the event the resident (or their predecessors) has/have made any improvements or alterations to the interior or exterior of the home which did not conform to all applicable local, state and federal building codes or ordinances in existence at the time the work was performed, the landlord has the right to require, as a condition of consent to the sale, that such improvement or alteration be brought up to all applicable local, state and federal building and construction standards in existence at the time of the sale.  When homes have been substantially remodeled, especially where electrical or plumbing systems are involved, this provision may be useful for the landlord to enforce in order to make sure that the proper building codes are followed.

1. Disputes are an inevitable part of being a landlord.  MHCO believes that assigning fault is less important that securing a workable resolution.  Landlords should be aware that Oregon law requires them to have a informal dispute resolution process in their rental agreement.[5]   The MHCO form provides that in the event of any dispute regarding the interpretation or enforcement of the rental agreement or the rules and regulations, either party shall have the right to have the matter handled through the alternative dispute resolution (“ADR”) process set forth in the attached MHCO Addendum, which is incorporated into the agreement.  If a resident request some form of informal dispute resolution, landlords should promptly respond in doing so.

[1] ORS 90.610(2).

[1] ORS 90.245 Provides prohibits the following provisions in a rental agreement: (a) Agreement to waive or forgo rights or remedies under the landlord-tenant law; (b) Agreements authorizing any person to confess judgment on a claim arising out of the rental agreement; or (c) Agreements relieving or limiting a landlord’s liability arising as a result of his or her willful misconduct or negligence or agreements requiring the tenant to indemnify the landlord for that liability or any costs connected therewith.  Any provision prohibited in ORS 90.245 is unenforceable. If a landlord deliberately uses a rental agreement containing provisions known by the landlord to be prohibited and attempts to enforce such provisions, the tenant may recover, in addition to the actual damages, an amount up to three months’ rent.

ORS 90.135 provides that “(1)f the court, as a matter of law, finds (a) A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result****”

[2] See, ORS 90.540, 90.545, and 90.610(3) – (8).

[3] See, ORS 90.505 and 90.100(23).

[4] See, ORS 90.415.

Disparate impact holds that certain practices in employment, housing, etc., may be considered discriminatory under the Act, if they have a disproportionately "adverse impact" on certain members of a protected class, i.e. those falling into the following groups: Race, color, religion, sex, disability, familial status or national origin.  The simplest explanation of how disparate impact works is by the following example: 

A landlord may be found to have discriminated against a prospective tenant, not because of an intentional discriminatory act, such as rejecting him or her based upon race or religion, but unintentionally, because the landlord relied upon a perfectly legal basis, except that it had a disproportionately adverse impact on members of a protected class.  Proof of the “disproportional impact” is usually based upon some statistical correlation showing that a certain class of protected persons are impacted more than others. In other words, unintentional discrimination can be found to be a violation of the Act.

According to the Memo (footnotes omitted): 

Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers. While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability). Additionally, intentional discrimination in violation of the Act occurs if a housing provider treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability).

The purpose of the Memo is to issue guidance, mostly by way of examples and prior case law, in how the use of criminal history during the tenant-screening process, may, and may not, trigger a disparate impact result. 

MHCO has closely reviewed the Memo and will be providing further guidance shortly. In the meantime, this article is a “heads-up” to landlords and managers regarding the use of criminal background checks in light of the Memo. It is preliminary only, and not intended as “legal advice”. MHCO members should consult their own legal counsel for advice relating to their particular situation. 

Summary of Thoughts and Suggestions.  Here are some tips based upon information from the Memo: 

1. 1.    Beware of testers, calling over the phone and asking if you will rent to persons with a criminal background. Be careful about answering these blind calls with a “yes” or “no”. Make sure callers understand that no rental decisions are made in advance of reviewing all relevant background information, including a criminal background report. Encourage the caller to either come to the office and pick up the necessary paperwork, or if they prefer, send it to them at their provided address. 

1. 2.    Ultimately, members should plan on making adjustments in their rules and application process.  MHCO will elaborate on this further in a future article.

1. 3.    Do not have a rule or policy that treats arrests, with no conviction, the same as a conviction. If you currently have such a rule, it should not be enforced.

1. 4.    Do not have a blanket guideline providing, for example, that conviction for any crime is an automatic denial.

1. 5.    Be sure that all rules or policies concerning criminal records are uniformly enforced – no exceptions.  However, note No. 7 below. You should avoid a policy saying that all persons with a felony are automatically disqualified. There is a world of difference between an ex-felon who served time for embezzlement ten years ago and has been a contributing member of society ever since vs. an ex-felon who served time for aggravated battery, and has been in and out of jail for similar violence over the past five years.

1. 6.    If possible, evaluate all other rental history, such as prior tenancies, employment, credit, income and affordability, before even going to the results of a criminal background check. If the prospective tenant does not pass one or more of these criteria, then the rejection can be based on that, thus avoiding the use of criminal background reports and disparate impact issues entirely.

1. 7.    In evaluating an applicant’s criminal history, do not use a “one size fits all” approach. There are several gradations of severity. Additional issues need to be addressed before making a decision to reject a prospective tenant based upon criminal history. For example:

1. 1. a.    How long ago was the conviction? (Convictions over 6-7 years old, with no further convictions, in most cases should probably not be used as the basis for a denial (excluding registered sex offenders, or those convicted for violent crimes).

1. 1. b.    What has the person been doing since release?

1. 1. c.    Has the person been convicted once, or on multiple occasions?

1. 1. d.    What was the nature and severity of the crime? 

1. 1. 8.    Note that according to the Memo, a refusal to rent to an applicant who has a conviction for one or more drug crimes involving the manufacture or distribution (not mere possession) of a federally defined controlled substance is immune from a disparate impact claim. In other words, a landlord or manager may legally base the refusal to rent to a prospective tenant based upon his or her conviction for manufacture or distribution will not result in a violation of the Act, based upon disparate impact. Per the Memo: “Section 807(b)(4) of the Fair Housing Act provides that the Act does not prohibit ‘conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’”

1. 1. 9.    ORS 90.303 (Evaluation of Applicant) addresses some of the same issues as in the Memo, but not all. And where there is similarity, Oregon law does not go as far as the Memo on the issue of criminal records and disparate impact. Oregon’s statute provides:

(1) When evaluating an applicant, a landlord may not consider an action to recover possession pursuant to ORS 105.105 to 105.168 (Oregon’s eviction statutes – PCQ) if the action:

      (a) Was dismissed or resulted in a general judgment for the applicant before the applicant submits the application. This paragraph does not apply if the action has not resulted in a dismissal or general judgment at the time the applicant submits the application.

      (b) Resulted in a general judgment against the applicant that was entered five or more years before the applicant submits the application.

(2) When evaluating the applicant, a landlord may not consider a previous arrest of the applicant if the arrest did not result in a conviction. This subsection does not apply if the arrest has resulted in charges for criminal behavior as described in subsection (3) of this section that have not been dismissed at the time the applicant submits the application.

(3) When evaluating the applicant, the landlord may consider criminal conviction and charging history if the conviction or pending charge is for conduct that is:

     (a) A drug-related crime;

     (b) A person crime;

     (c) A sex offense;

     (d) A crime involving financial fraud, including identity theft and forgery; or

     (e) Any other crime if the conduct for which the applicant was convicted or charged is of a nature that would adversely affect:

         (A) Property of the landlord or a tenant; or

         (B) The health, safety or right to peaceful enjoyment of the premises of residents, the landlord or the landlord’s agent. 

1. 1. 10.    Readers should not assume that compliance with ORS 90.303 means that a denial of tenancy could not result in a disparate impact claim.  In other words, landlords and managers should be extra-cautious in this minefield, since where federal law is more restrictive (i.e. burdensome on landlords), it will likely pre-empt state law.  

Here are some considerations to keep in mind:

1. 1. a.    The Memo and ORS 90.303 both prohibit screening applicants for arrests, regardless of the conduct that led to the arrest;
   2. b.    ORS 90.303 says that an arrest which has not been dismissed, but is still pending (i.e. a conviction is still possible) may be considered in tenant screening. The HUD Memo does not address this issue – so we don’t know what the feds would say. Accordingly, it may be prudent to take a more balanced approach in these situations. For example, rather than having a blanket policy that a tenant will automatically be rejected if their charge is still pending, landlords and managers should evaluate the matter based upon (a) When the matter will be resolved, e.g. a week, a month, or a year? (b) What was the charge? (c) If convicted, would the applicant automatically be denied?  As noted above, the whole issue of criminal background information is an element of the application process that need not be fully vetted, if, regardless of the crime, its severity or recency, the person would fail the application process on other grounds. If so, there is no need to rely upon the community’s criminal background policy to vet an applicant. However, a word of caution here: Be prudent when selecting a basis for denial. Using a weak reason, versus a stronger one, can be viewed as pretextual if the applicant is a member of a protected class. In other words, beware of using a credit basis for denial if it is “iffy” and exclude the criminal background basis. In these cases, landlords and managers should consult legal counsel; it may be best to use both bases. 
   3. c.    ORS 90.303 says that a landlord may consider a conviction for certain conduct, generally relating to threats of violence, drugs, sex, or property damage, which would indicate risks to fellow tenants or the landlord. However, the HUD Memo is broader and more subtle (i.e. it demands an evaluation beyond a one-size-fits-all rejection policy). In short, do not rely solely on ORS 90.303, to the exclusion of the more balanced approach demanded by the Memo.
   4. d.    Unlike the HUD Memo, ORS 90.303 does not address how long ago the conviction occurred, or require an evaluation of what the applicant had been doing since the conviction. (i.e. evidence of rehabilitation). The General Landlord-Tenant Coalition could not reach agreement on whether to use a five or seven year standard in the statute, nor whether multiple convictions should be dealt with differently than single ones. Accordingly, our statute is silent on this. Footnote 34 of the Memo cites to the following authority, which mentions six to seven years: 

“(S)ee, Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology and Pub. Pol’y 483 (2006) (reporting that after six or seven years without reoffending, the risk of new offenses by persons with a prior criminal history begins to approximate the risk of new offenses among persons with no criminal record).”

Conclusion.  Landlords and managers could be forgiven for feeling they are caught in a dilemma. If they follow Oregon law, it may not be enough – but at least the statutes are black and white. And while it may be sufficient to follow federal law, today that requires a “disparate impact” analysis, which, at best, is a shifting and nuanced set of “guidelines”. Perhaps most unsettling, now a good faith effort to comply with the tenant application process is not enough. Unintentional discrimination, now known under the more benign title, “disparate impact”, is more of a concept than a law, since it does not depend upon one’s overt actions,  - however well intended - but upon the long term “consequences” of those actions based upon inferred and empirical statistics derived from academic writings, analysis, surveys, footnotes, and demographics. Is this something landlords and managers can or should be expected to fully appreciate and understand?  The best we can do today is to keep alert to the issue. MHCO will have more on this minefield in coming articles.