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Answer. Here is a summary of what you can and cannot do. The statute is found at ORS 90.300.

• A "security deposit" includes any last month's rent deposit;
• You must provide the tenant with a receipt for any security deposit the tenant pays;
• If you sell the park you need to turn over all deposits to the new owner, since he/she then has the responsibility to return the deposit at the end of the tenancy;
• The rental agreement must identify the deposit(s) and amounts;
• You may not increase a security deposit during the first year of the tenancy (if it's increased after the first year, the tenant must be given three months to pay);
• However, if you and the tenant agree to modify the rental agreement, say for a pet, then you may increase the deposit;
• You may claim from the security deposit only the amount reasonably necessary:
  • To remedy the tenant's defaults in the performance of the rental agreement including, but not limited to, unpaid rent; and
  • To repair damages to the premises caused by the tenant, not including ordinary wear and tear.
• You are landlord not required to repair damage caused by the tenant in order to claim the deposit for the cost to make the repair. Any labor costs assessed for cleaning or repairs must be based on a reasonable hourly rate. You may charge a reasonable hourly rate for you own time if you do the cleaning or repair work;
• The type of defaults and damages for which you charge the security deposit include (but are not limited to):
  • Carpet cleaning, other than the use of a common vacuum cleaner, if the cleaning is performed by use of a machine specifically designed for cleaning or shampooing carpets;
  • There are several other carpet cleaning provisions (check the statute);
  • Loss of use of the dwelling unit during the performance of necessary cleaning or repairs for which the tenant is responsible if the cleaning or repairs are performed in a timely manner.
• You may not require a tenant to pay or forfeit a security deposit or prepaid rent for the tenant's failure to maintain a tenancy for a minimum number of months in a month-to-month tenancy;
• You must apply any last month's rent deposit to the rent due for the last month of the tenancy:
  • When you or the tenant gives to the other a notice of termination, other than a notice of termination under ORS 90.394 (failure to pay rent);
  • When you and the tenant agree to terminate the tenancy; or
  • When the tenancy terminates in accordance with the provisions of a written rental agreement for a fixed term tenancy.
• You must account for and refund any portion of a last month's rent deposit;
• Unless you and the tenant agree otherwise, the tenant may not require you to apply a last month's rent deposit to rent due for any period other than the last month of the tenancy;
• In order to claim all or part of any prepaid rent or security deposit, within 31 days after the tenancy terminates and the tenant returns possession you must give the tenant a written accounting that states specifically the basis of the claim(s) against the deposit;
• You must give a separate accounting for security deposits and for prepaid rent;
• You must return the unclaimed deposit or prepaid rent not later than 31 days after the tenancy terminates and the tenant returns possession to you;
• The written accounting and refund of unused deposit or prepaid rent to be by personal delivery or by first class mail;
• For situations in parks where the tenant has abandoned the home (or floating homes in marinas), the 31-day accounting and return period commences on the earliest of:
  • Waiver of the abandoned property process;
  • Removal of the manufactured dwelling (or floating home) from the rented space;
  • Destruction or other disposition of the manufactured dwelling or floating home; or
  • Sale of the manufactured dwelling or floating home.
• If you fail to comply with the accounting and return provisions of the statute or it is in bad faith (e.g. improper charges, etc.), the tenant may recover the money due in an amount equal to twice the amount:
  • Withheld without a written accounting; or
  • Withheld in bad faith.
• Claims arising under the security deposit statute do not preclude you or the tenant from recovering other damages under the Landlord Tenant Act.

Rule 1. Do not accept rent if you know that the tenant is in violation of the Park Rules and you intend to issue a 30-day notice of default. Example: If the tenant has an unpermitted pet or has someone living with him/her who has not applied for residency as a tenant do not accept rent if you are planning to give the tenant a 30-day notice of default. As soon as you are aware of a violation give the appropriate written notice to the tenant. If the notice is simply a warning asking the tenant to correct the situation it probably is safe to accept rent since you are asking the tenant to cooperate voluntarily, rather than actually terminating their tenancy.

Rule 2. Do not accept performance by a tenant if it varies from the terms of the rental agreement or Rules and Regulations. If the rental agreement provides for a late charge after the 4th day of the month, you should not accept late rent on the 5th day or thereafter without assessing the late charge. A consistent pattern of accepting late rent without assessing the late charge may be construed as a waiver of the right to do so later. This is also true where you have not assessed it against one tenant and then try to assess it against another.

Rule 3. Unless you and the tenant have agreed otherwise in writing, you will waive the right to terminate a rental agreement for nonpayment of rent if you accept partial rent after issuing a 72 or 144 hour notice. The reason is simple: Oregon law says that you may avoid a waiver and accept partial rent, if the arrangement is set forth in a written agreement signed by both parties. Say, for example, that following issuance of a 72 or 144 hour notice to pay rent you enter into a written agreement with the tenant which provides that you will accept a partial payment of $100 on the 10th with the balance to be paid by the 20th. If the tenant pays the $100 but fails to pay the balance on the 20th as agreed you may immediately file for eviction. However, your written agreement with the tenant should also include an express provision that if the balance is not paid as agreed - no new 72 or 144 hour notice will be required before filing the eviction.

Rule 4. If you have already issued a 20 or 30-day notice for violation of the park rules you may accept rent so long as it is prorated to the termination date specified in the notice. Never accept a rent tender which extends beyond the period in the rules violation notice. For example, if on May 15, you gave the tenant a 30-day notice which requires correction by June 15th, you should only accept rent from the tenant for the first 15 days of June. Accepting a full month's rent means that the tenant has"bought" the right to remain in the park for all of June - which is inconsistent with your demand that he/she cure the violation or vacate by the 15th. If the violation notice is for 30 days and its delivery can be put off a few days it is recommended that it be issued on the first of the month so no proration would be required.

Rule 5. If you have filed an eviction against the tenant "for cause" you may accept rent beyond the period in the notice if (a) you give the tenant written notice that acceptance of rent will not waive your right to proceed with the eviction and (b) the amount paid does not extend beyond the date the rent is tendered. You should not accept rent prospectively. For example, assume that (a) your 30-day notice on May 15 expressly notified the tenant of your right to accept rent without waiver and (b) you filed an eviction on June 16th, and (c) on June 25 the tenant tendered rent up to June 25 - you could accept it. In other words, acceptance of a tenant's rent solely for the period he/she has already been there will not constitute a waiver of the right to continue your eviction against the tenant.

Rule 6. You may serve a 72 or 144 hour notice of nonpayment of rent upon a tenant against whom you have already filed an eviction for cause. This is expressly allowed by Oregon Law. Although the statute does not specifically say so, it is strongly recommended that the amount sought in the 72 or 144 hour notice not demand payment for period beyond the date of issuance on the notice. For example, if you filed for eviction on June 1 because of an uncured rules violation on June 8th you could issue a notice for nonpayment of rent - however, the notice should only demand rent for the first 8 days of June. If you waited until June 25 to issue the nonpayment notice you would demand rent for the first 25 days of the month.

Admittedly, these rules can be confusing. If you have any questions you should speak to an attorney familiar with landlord-tenant laws. If in doubt, refuse the tenant's rent tender until you are absolutely sure that acceptance will not constitute a waiver of your rights. If the defaulting tenant mails in a rent check for more than is acceptable based upon the above rules or places it in a drop box at the office it should be promptly returned within six (6) days. Holding on to such payment beyond that time could give rise to the argument that you waived your right to proceed with the eviction.

Answer. Here is a summary of what you can and cannot do. The statute is found at ORS 90.725.

1. A landlord or a landlord's agent may enter onto a rented space, not including the tenant's manufactured dwelling or floating home or an accessory building or structure, in order to:

• Inspect
• Make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, perform agreed yard maintenance, equipment servicing or grounds keeping or exhibit the space to prospective or actual purchasers of the facility, mortgagees, tenants, workers or contractors.

1. The right of access of the landlord or landlord's agent is limited as follows:

• Serving notices
• Emergencies
• Tenant-requested repairs or maintenance
• Per a written yard maintenance agreement that requires the landlord to perform yard maintenance, equipment servicing or grounds-keeping for the space:

1. In all other cases, unless there is an agreement between the landlord and the tenant to the contrary regarding a specific entry, the landlord shall give the tenant at least 24 hours' actual notice (doesn'thave to be in writing, but recommended unless exempted under No. 2, above) of the intent of the landlord to enter and the landlord or landlord's agent may enter only at reasonable times.

1. The landlord or landlord's agent may not enter if the tenant, after receiving the landlord's notice, denies consent to enter. The tenant must assert this denial of consent by giving actual notice of the denial to the landlord or the landlord's agent prior to, or at the time of, the attempt by the landlord or landlord's agent to enter.

1. A landlord shall not abuse the right of access or use it to harass the tenant. A tenant shall not unreasonably withhold consent from the landlord to enter.

1. A landlord has no other right of access except:

• Pursuant to court order;
• As permitted by ORS 90.410 (2) (Waiver of termination of tenancy);
• As permitted under ORS 90.539 (Entry to read submeter); or
• When the tenant has abandoned or relinquished the premises.

1. If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement pursuant to ORS 90.630 (1) and take possession in the manner provided in ORS 105.105 to 105.168 (Oregon eviction statutes). In addition, the landlord may recover actual damages.

1. If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but that have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the reoccurrence of the conduct or may terminate the rental agreement pursuant to ORS 90.620 (1) (Termination by tenant). In addition, the tenant may recover actual damages not less than an amount equal to one month's rent.

Answer:

Please note revision from last week's article: The cities of Portland and Milwaukie, Oregon have passed local ordinances that require 90-day no-cause notices regardless of the length of the tenancy. Although of arguable legality, this would only affect RV parks located within those two cities.

Both tenants appear to be violating MHCO Form 80, Section 12 D, which prohibits any person not listed in the tenant's rental application from occupying the RV in the park. "Occupy" means living in the RV more than 7 days (consecutive or nonconsecutive) in any calendar year. It is important to act quickly once you learn of an unauthorized occupant to avoid any waiver issues.

In the first situation, it seems like it would be best to simply issue a no-cause tenancy termination notice to your tenant. The unauthorized woman is already causing problems and there is no need to give her a chance to become an approved tenant. The no-cause notice would require them both to vacate. If not, you could file an eviction case.

An RV tenancy (unlike a manufactured home tenancy) can be terminated with a no-cause notice if the tenancy is month to month. If the tenant has been in the park less than a year, the no-cause notice period can be 30 days. After the first year of tenancy, the notice period must be at least 60 days. Use MHCO Form 43C (30/60 Day Notice to Vacate - No Cause).

(NOTE: The cities of Portland and Milwaukie, Oregon have passed local ordinances that require 90-day no-cause notices regardless of the length of the tenancy. Although of arguable legality, this would only affect RV parks located within those two cities.)

You could take the same approach in the second situation, although it sounds like perhaps you would like to give this tenant an opportunity to comply. I would recommend that you speak with the tenant and explain that unless the boyfriend fills out an application for a background check, the park will have to issue a no-cause tenancy termination notice (just like in the first situation). If he complies and passes the background check, he must sign the rental agreement as a co-tenant (as required by MHCO Form 80, Section 12 D).

A typical twist on some of these scenarios is that the occupant passes the criminal/eviction background check, but fails the credit check. In such case, you would be perfectly within your rights under MHCO Form 80 to insist that the occupant vacate. However, you would also have the option of allowing the occupant to stay by signing a Temporary Occupant Agreement (MHCO Form 25). This would give you the flexibility to allow the occupant to stay, but with the requirement that he/she vacate if the tenant's tenancy ends.

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. Before addressing your question directly, it is important to understand what state and federal law say about 55+ communities. Besides several qualifying requirements, a legally established 55+ community must 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 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, a community may increase the age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years. Similarly, a community may impose a more restrictive minimum age requirement than 55. In order to maintain this exemption from the Fair Housing laws which prohibit discrimination against families with children, it is important for park owners and managers to make sure that all such age/occupancy requirements are properly reflected in the community's Rules and the Statement of Policy - and be consistently applied.

So, technically, assuming that your community demographic is well above the 80% floor, there is nothing per se' illegal with the situation you describe.[1] Say, for example, the resident was not ill, but wanted her sister and child to live in the home with her, you could - but are not required - to grant permission. Under those circumstances, if the resident subsequently became ill and was hospitalized, thus leaving the sister and her child in the home on a temporary basis, I view that as an acceptable situation, and not a violation of the law. Even though the resident is not "occupying" the home while she is in the hospital, she is the lawful occupant, and would return to that home upon her recovery.

There is, metaphorically speaking, another 80/20 rule: ORS Chapter 90 is, like most laws, enacted to address essentially 80% of the most commonly observed landlord-tenant issues. That leaves the other 20% to be dealt with on an ad hoc basis, i.e. as they arise. Your situation raises issues that while not technically addressed under the law, it is close enough, and one rather simple to justify.

• It is not a violation of the state and federal law;
• It does not endanger the health, safety or welfare of others in the community; and
• Despite some grumbling from a few residents, permitting them to stay on a temporary basis is the right thing to do, even though it may not fall directly under the temporary occupant statute. (ORS 90.275)

However, in order to avoid setting some sort of "precedent" and perhaps to quell a few complaints, you should consider having a written agreement with the sister, saying something to the effect that she and her daughter are permitted to live at the home, with the understanding that she is doing so on a temporary basis and with the knowledge and consent of the hospitalized resident; that she will abide by the community rules; and that the rent will continue to be paid on time.

You should, of course, continue to monitor the situation, making sure the agreement is being honored, and that there are periodic updates on the health of the resident. If it begins to appear that the resident may not be coming back to the space, you will have to address a sale of the home to another qualifying resident.

[1] Your question did not address whether there is a second-person age requirement. But even if there was, and the 5-year old was in violation, my answer would be the same, i.e. this is more of a charitable response to a difficult situation. And since you are the landlord - with the power to enforce violations - you can, under these circumstances, choose not to enforce the technical violation of the second-person age limit.

Still, not everyone has gotten the message. I've personally seen many owners - and real estate brokers! - list parks for sale without giving proper notice to residents, and I know of at least one lawsuit filed by residents against an owner for allegedly failing to comply.

Unfortunately, in addition to exposing owners to more potential liability, this law complicates the park sale process and can easily add an additional month before an owner can legally accept an offer.

This is important stuff! Get online and look up ORS 90.842, 90.844, 90.846, 90.848, and 90.850. Yes, it's a mind-numbingly boring read, but familiarity with it may save you from being sued.

Below, I've written a summary of the basics you'll need to know. For brevity, I've left out some details and exemptions, and added my own abbreviations.

THE GUTS OF THE LAW:

An owner ("O") must give written notice of intent to sell the park to Tenants ("T") before marketing the park, or when _ receives an unsolicited offer to purchase that they intend to consider - whichever occurs first.

• The notice must be given to all T's of the park, or to a tenant's committee ("TC") if one exists.
• The notice must include the following:
  1. The _ is considering selling the park.
  2. The T's have an opportunity (through a TC) to compete to purchase the park.
  3. Within 10 days of delivery of notice (An attorney would likely recommend first class mail with a certificate of mailing; and adding 3 days for mail delivery), T's must form or identify a TC, and notify _ in writing of T's interest in competing to purchase the park, and give the name and contact info of the representative of the TC.
  4. The TC representative may request financial information from the owner within the 10-day period (which the _ must provide within 7 days of delivery of the request).
  5. Information about purchasing a manufactured dwelling park is available from the Office of Manufactured Dwelling Park Community Relations of the Housing and Community Services Department. (O must also send a copy of the notice to this same office!)

THEN: Within 15 days after delivery of the O's financial information (or within 15 days after the 10-day period if TC does not request financials), if the T's want to continue competing to purchase the park, the TC must form a corporate entity and submit a written offer to purchase the park to the O. The _ may accept, reject, or submit a counteroffer, as they would with any typical market transaction.

THAT'S IT! Simple, right? NOPE. I just boiled down almost 2,000 words of state statute into a tenth of that; and I left out a bunch of important details. But as a park owner and licensed real estate broker, here's my basic takeaway:

• If you want to sell your park or have received an offer to purchase, give your tenants the proper notice - and don't formally accept another offer until you've worked through the process! There are several ways to accomplish that. You can still seek or negotiate with other potential purchasers during this process, after you've sent the initial notice.
• I recommend delivering notice to all tenants. I believe that even if you have a solid tenant's committee in place at your park, there's still exposure to liability if not every single tenant knows about the opportunity to compete to purchase.
• If you are purchasing an Oregon park: make sure that before closing, the seller supplies an affidavit of compliance to you, your attorney, or the title insurance company, per ORS 90.850.
• There are some important exemptions from this requirement to give notice of sale - see 90.848. The most applicable is section (i): "Any sale or transfer in which the park satisfies the purchaser's requirement to make a like-kind exchange under section 1031 of the Internal Revenue Code." I've asked John VanLandingham, the tenant's attorney who drafted these laws, "What if the purchaser is a group of partners wherein only one partner is completing a 1031 exchange?" He assured me he believes the exemption would still apply.
• I recommend to all my selling clients: Forget the exemptions, err on the side of caution, and give the notice to all tenants, even if you believe your sale or transfer is exempted from the burden. The statutes are written with too much unintended ambiguity, and people are too prone to filing lawsuits if they feel slighted.

MHCO will soon have a "Notice of Sale of Manufactured Dwelling Park" form available to use in compliance with these laws - but you still must carefully follow the statutes, mind those deadlines, and be aware of the overall process! I am not an attorney, and recommend your attorney review all tenant notices.

Good Luck!

Answer. This is a great question, and one that doesn'tget asked enough. The applicable statute is ORS 90.630 (Termination by landlord; causes; notice; cure; repeated nonpayment of rent.) In summary, the statute provides that a landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy by giving to the resident not less than 30 days' notice in writing before the date designated in the notice for termination. There are several types of violations listed, but the one addressing your question is subsection (1)(a): '_a material noncompliance with ORS 90.740... ."

ORS 90.740 (3)(j) requires that the resident "behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors."

The text of ORS 90.630 that directly addresses your question is found at subsection (4):

"The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period ... ." (Emphasis added.)

So clearly, when it comes to conduct, if the bad behavior continues during the 30-day period, the 30-day notice is violated the moment it re-occurs "within the 30-day period". Thus, if after receiving the 30-day notice, the resident repeats what he was told not to do, you do not have to permit the bad behavior to continue for 29 more days - you may file immediately. To take a more serious example, suppose the tenant was speeding through the community, endangering the other residents. Certainly, if that continues during the 30-day period, it has not been "cured" and you may file the F.E.D.

However, out of an abundance of caution (at least when the violation does not endanger the health, safety and welfare of the other residents) you might consider allowing the repeat violations to re-occur a couple of times, just to make sure you've got clear evidence of an intentional disregard for the 30-day notice.

Also, note that ORS 90.630(3) requires that the 30-day notice state '_facts sufficient to notify the tenant of the reasons for termination of the tenancy and state that the tenant may avoid termination by correcting the violation... ." This requires that you be very clear, both in explaining in the notice the nature of the violation, and exactly what steps must occur to avoid termination.

I suspect the confusion about whether a landlord must wait the full thirty days before filing for eviction arises because when the violation does not involve conduct, but relates, say, to a static violation, such as a failure to maintain the space, the full thirty days must be observed. That is, the resident has the full 30-day period to cure, e.g. cleaning the yard, or removing dilapidated furniture from the street view.

To put it another way, when the conduct requires that the resident "stop" doing something, the affirmative act of doing it within the 30-day period is, per se' a violation of ORS 90.630(4); but when the 30-day notice requires that he "commence and complete" a certain activity, it must be done within the entire 30-day period. If it is not completed within the 30-days, only then may the eviction be filed.

Answer. This issue is not dissimilar to one asked recently where the hospitalized resident's sister came as a concerned family member and, bringing her small child, wanted to stay at the home which was located in a 55+ community.

My response then, s here, is that ORS Chapter 90, like most laws, is enacted to address essentially 80% of the most commonly observed landlord-tenant issues. That leaves the other 20% to be dealt with on an ad hoc basis, i.e. as they arise. This situation raises issues that do not have a direct answer under the law.

Here, the issue deals, perhaps more directly, with what authority management has to permit friends and family to reside in the home of the comatose resident? Without some assurance that any of these folks would be permitted to stay in the home, the answer is a bit easier than whether a visiting sister with a small child is in violation of the 55+ park rules (she was not).

The most conservative answer is, to me, the best one; unless there is some basis for granting consent, I would not permit anyone to occupy the home, other than the resident. You have no knowledge of the visitor's backgrounds, and permitting them to encamp in the resident's home could pose problems to other residents.

The Oregon landlord-tenant law contains nothing one could point to that would authorize management to turn over possession to friends and family. Even family alone, should not be permitted access. There are simply too many things that could go wrong, and families can do strange things when a member passes away.[1]

• Like taking items from the home that now belong to the estate;
• Like moving in and claiming the home was "inherited";
• Like selling the home and retaining the proceeds, etc.

And what if the resident recovers? Will there be issues when he/she wants to return home, and one or more persons are staying there? What if valuables are missing?

The take-away is this: Absent some fairly clear instructions from the resident, or the attorney-in- fact under a durable power of attorney, the downside in permitting occupancy far outweighs any upside. Your explanation should be simple and straight forward: Oregon law does not authorize you to turn over possession of a resident's home to any unauthorized third parties. Under no circumstances should you accept any rent payments from them.

Lastly, if the friends and family are already staying in the home, you have a different set of problems. These folks are squatters, in that they did not enter into possession under any legal claim of right. ORS 90.100(43) defines a "Squatter" as:

... a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit. "Squatter" does not include a tenant who holds over as described in ORS 90.427 (7).

Accordingly, you should first try to get them to vacate immediately and peaceably. If they refuse, your only alternative is to file for eviction against them. You do not need a written notice, since this case does not arise under the Oregon Residential Landlord-Tenant Act. You should contact an attorney familiar with eviction law, who can assist you in using the proper summons and complaint. (See, ORS 105.126) Once filed, the case will proceed in much the same fashion as all other evictions.

[1] Remember that the abandonment law has a specific protocol upon death of a resident living alone. Management is required to secure the home, issue a 45-day letter, and give the estate the same rights as a lienholder, with the obligation to pay storage fees and maintain the home until removal or resale. And no one may occupy the home. See, ORS 90.675(21).

The Basic Rule for Liability Avoidance in a Mobilehome Park 

It is the parents’ responsibility, not management’s, to decide ability to swim and access privileges for minors. Access, hours, and supervision restrictions are illegal under the Federal Fair Housing Amend- ments Act of 1988 (FHAA).1 While narrowly drawn rules may differentially impact children (persons under 18 years of age), these are not advised. The “default setting” is best: the law requires that the parents be vested with exclusive discretion to decide, control and live with their choices for kid’s access and supervision issues. Likewise, scour the rules and regulations (and now, internal management policies, manuals, agreements and memoranda) to eliminate any rule which mentions “children.” Use of the term “children” is a trigger word, no different than use of any other label for a person in a protected class. The Department of Housing and Urban Development (HUD) treats children as “small adults” for purposes of scrutinizing rules.

The Federal Fair Housing Amendments Act of 1988 (FHAA) created a new protected class of “familial status”. In California, the federal courts have addressed this requirements by ruling that “all age” communities may not discriminate against children, no more than management can discriminate against any other protected class.

Federal Requirements and Over-Regulation 

Let’s face it; some parents are not responsible. According to the Centers for Disease Control and Prevention, of all children one to four years old who died from an unin- tentional injury, almost 30% died from drowning. Fatal drowning remains the second-leading cause of unintentional injury-related death for children ages one to 14 years. The same report reveals that “the fatal drowning rate of African American children ages 5 to 14 is 3.1 times that of white children in the same age range.”

1. E.g., United States v. Plaza Mobile Estates, 273 F.Supp.2d 1084 (C.D. Cal. 2003); Bischoff v. Brittain, No. 2:14-cv-01970-KJM-CKD, United States District Court, E.D. California (May, 2016).

Mobilehome park swimming pools are deemed public, and re- quire fencing, postings and related equipment. In years past, it was believed that parkowners could require adult supervision in the swimming pool area, but it is for the parents to decide and control.

State Requirements and Conflict with the FHAA and the FEHA

California, meanwhile, promulgated modifications to Title 24, but apparently did not clear their proposals with any lawyer or the children’s rights lobby. The state mandated sign includes language mandated by Title 24 of the California Code of Regulations, as follows:

“WARNING: NO LIFEGUARD ON DUTY Children under the age of 14 shall not use pool without a parent or adult guardian in attendance.”

This language is a prima facie violation of the FHAA protections against discrimination on the basis of familial rights.2 Posting this sign places every operator of a Title 22 swimming pool (that’s us parkowners) in violation of the FHAA. If posted, any aggrieved family member may sue just because it is posted (enforced or not). Since posting this sign exposes a parkowner to liability, what should the parkowner do? First, offer to post the sign which would be consistent with the FHAA:

“WARNING: NO LIFEGUARD ON DUTY Children under the age of 14 should not use pool without a parent or adult guardian in attendance; management recommends no one swim alone.”

Despite entreaties made for clarification to resolve this conflict, to both the Department of Housing and Community Development (HUD) and the Department of Fair Employment and Housing (DFEH), there has been no response. This problem does not lie in an older persons (55+) park, by the way. This is because the “older persons” park is exempt from the familial status requirements. Since a parkowner may entirely exclude children due to the effect of the 55+ regulation, allowing kids at all is a benefit that is not required (total exclusions, pool hours, supervision are all allowable restrictions) all permissible in the “older persons” community at this time.

2 . In striking down the legal requirement for signage as a discrimination defense, the central district judge held that " . . . there is nothing magical about the age of 18 or 14 years old if defendants' concerns are for the protection of the health and safety of the children or other residents in using recreational facilities or the swimming pool or riding bicycles. Such concerns could be addressed with the use of rules. Moreover, rather than being connected to such ages, bicycle and pool safety would be better served with a proficiency requirement." U.S. v. Plaza Mobile Estates. 

In many counties, the illicit requirement is not applicable until capital renovation of the pool area. But if not, what do you do if the county representative refuses to consent to the suggested modification? Do you refuse to comply with state law in order to comply with the FHAA, or do you comply with the state mandate and violate the FHAA? As of this time, you must seek out counsel, pay them, obtain advice, and follow it.

Management Communications Can Violate the FHAA

In a housing case decided in Northern California in May, 2016, the landlord was called out for discrimination against children in an all age facility. In Bischoff v. Brittain,3 the on site management received training, including a “Resident Relations Training,” at seminars pro- vided by independent experts. A “Brief Recap of Notes” document summarizes several meetings and was distributed to the managers. The document stated that as to handling unsupervised children:

1. If you have a young child not being supervised, walk the child home and speak with whoever is in charge.

2. Have your supervisor write a letter after you speak with the person in the apartment, which will alert whoever opens the mail, that you are worried over the child’s safety-you are now showing safety concerns and are not attacking their parenting skills or being discriminatory.

1. If nothing changes and the child is once again outside un- supervised, notify your super- visor who will now contact so- cial services and/or the police. 

2. If nothing still changes, we will then consider eviction and note the reasoning on their notice. 


The landlord’s property director said the document is “simply a statement of suggested guidelines for the managers’ reference and discretionary application to unsupervised young children.” However, the court found that the reasoning violates “familial status” rights. The director relied on a mistaken understanding that “young children require regular adult super- vision.” She felt that management should “encourage [...] parents and guardians to exercise such supervision for the safety of their young children and for the benefit of other residents.” She believed that “such supervision is necessary so that young children who are tenant residents “will not be at risk of injuring themselves” or other residents, or “engaging in disruptive or destructive activities.”

“In an effort to promote such supervision and discourage parent-guardian neglect, we developed internal suggested guidelines for managers to use in their discretion as circumstances might war- rant.”

3. U.S.Dist.E.D.Ca. April 29, 2016, Decided; May 2, 2016, No. 2:14-cv-01970-KJM-CKD, 2016 U.S. Dist. LEXIS 58280.

The guidelines do not pass muster, said the court. While intended to protect the safety and well-being of young children in need of supervision, to encourage parents or guardians to provide that needed supervision, and to limit disturbances to other residents, they also allow differential treatment. It is no help that the guidelines serve the concomitant business purpose of protecting against liability that might arise from injuries to such young children.

The court found that the landlord’s policies “[...] toward unsupervised young children inherently treats children differently than adults by limiting when they may use the common areas of the complex to times when they are supervised by an adult.” The guidelines also treat parents of young children differently by subjecting them to certain consequences if their children are found unsupervised. Adult-only households may use the complex without limitation and warnings or facing eviction for violating the adult supervision guidelines. Be- cause children are subjected to explicitly differential treatment there was a validly claimed discrimination based on the face of the guide- lines.

The landlord claimed the guide- lines are not discriminatory: they are not a formalized, mandatory “policy” or rental provision; they only limit young children to the ex- tent the children are unsupervised; they apply only to young children; they have nondiscriminatory justifications; and they originated from a “neutral” source (educational sources). The court replied that the landlord did not understand the law: “[...]to establish a prima facie case of facial discrimination, a plaintiff must show only that the defendant subjects a protected group to explicitly differential treatment”4. But the landlord did not dispute that it treated unsupervised young children and their parents differently than adults sans children.

The guidelines were violations even if just “[l]imiting the use of privileges and facilities [which] is a violation of [§ 3604(b)].” The court also found it irrelevant that the guidelines distilled “neutral” information. The courts have held that “all-age” park rules which: (i) treat kids differently; (ii) are not based on a “compelling business necessity” and (iii) did not represent the “least restrictive intrusions” on familial status rights in promoting a health and safety interest, violate the law.

Any age restrictive rules which treat children, (and thus, families with children), differently and less favorably than adults-only house- holds violate the law. Period. In other words, no matter how ad- ministered, the rules were invalid as drafted. Even if never enforced, such rules may lead to a resident’s belief about allowable restrictions in use of the facilities. And now, the right to sue extends to internal policies handed down to on site personnel.

4. Citing Community House, Inc. v. City of Boise (9th Cir. 2007) 490 F.3d 1041 at 1050.

Safeguards Against Harm? 

Well-meant intentions are no defense, said the court. The court noted that the landlord submitted no evidence that managers were told to apply the policy only if a young child’s safety was threatened, or that managers in practice applied the policy in such a way. Land- lord also said, diluting the safety defense, that one of the “primary goals” of the guidelines is to limit disturbances to other residents by children, which “likely encompasses situations beyond those in which a child’s safety is legitimately threatened.” Peace and quiet is not a licit basis for the special treatment of children. Broad exclusionary policies without very particular narrowly tailored terms will be struck down. No cases specify what those narrow, least intrusive regulations might look like. And, it is submitted that seeking to develop children-specific rules is so fraught with difficulty and exposure as not to be worth the time and effort. Again, let the parents and guardians decide.

Eliminate the Exposure You May Have: 

Scour on-site management directives, policy handbooks, instructions, procedures manuals, emails. In other words, audit your intermediate level of management documentation; the entire body of memorialized supervision instructions, policies and requirements that apply to on site management. Do your employment agreements contain your fair housing policy? Do your agreements prohibit discriminatory statements, actions, conduct, communications, jokes, or notices? None of these documents is privileged from the prying eye of the plaintiff class counsel. It may be time to update these documents.

Remember: requiring adult supervision is NOT allowed in all age parks. 

An adult supervision requirement is outlawed by several decisions citing United States v. Plaza Mo- bile Estates: it is the parents, not management, who act as the “gate- keepers” of the facilities including swimming pool access and usage of facilities in “all age” communities. Requiring any form of super- vision constitutes a violation of the FHAA.

The FHAA Examples of Improper Rules to Update 

Rules and regulations in “all age” communities which discriminate include the following. If your rules contain any of the following restrictions, or any rules similar to them, it is strongly advised that a legal advisor conversant with the FHAA (and implementing regulations and judicial and administrative interpretations) be promptly consulted.

• “Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas [or] jet pool at any time;” 

• “Residents and visitors under the age of fourteen (14) years old are not permitted to use the saunas or jet pool (spa) at any time;” 

• “Use of the spa is prohibited to children under eighteen (18) years old;” 
“Use of the pool by children fourteen (14) years old and un- der requires accompaniment by a resident;” 

• “Parent of resident child or resident host must accompany 
children at all times in the pool or pool area;”
• “No one under the age of four-
teen (14) years old is allowed • to use the Jacuzzi;”
• “Guests and residents under the age of eighteen (18) years
old are permitted to use the swimming pool and sun deck from the hours of 10:00 a.m. to 2:00 p.m. only and must be accompanied by an adult park resident;”
• “Parent or responsible adult must accompany all children under fourteen (14) years old at all times [in the swimming pool and/or pool area];”
• “Minors under 16 years old are not permitted in the therapeutic pool;”
• “At 2:00 p.m. children are to be out of the pool area;”
• “All children must be accompanied by an adult to use the pool;”
• Children under the age of fourteen (14) years old shall not be allowed to ride a bicycle on the park streets without the accompaniment of an adult registered to the mobilehome in which they reside;
• Children under the age of eight (8) years old must be confined to a play area in the rear fenced yard of the family residence;
• “Children under 18 years old must be accompanied by a parent when they are in the swimming pool;”
• Children shall not be allowed to play on park streets, or in any other common areas;
• Residents under the age of eighteen (18) years old shall not be permitted to use the recreation building (clubhouse) or any other recreational facilities without the accompaniment of an adult registered to the mobilehome in which they reside;
• Residents under the age of eighteen (18) years old must be accompanied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (club- house);
• Residents and visitors under the age of eighteen (18) years old may use the swimming pool and sun deck during the hours of 10:00 a.m. to 12:00 p.m. (noon) every day. Residents and visitors under the age of eighteen (18) years old are not permitted around the pool or sun deck after 12:00 noon;
• Residents and visitors under the age of eighteen (18) years old are not permitted to use the saunas or the therapeutic jet pool at any time; 

• Children under the age of four- teen (14) years old must be ac- companied by a registered resident adult to be allowed to ride a bicycle in the park streets; 

• The adult resident host must accompany all guests of their mobilehome who use the recreation building (clubhouse) or any of the recreational facilities of the park; 

• Children under the age of fourteen (14) years old must be ac- companied by the registered resident adult from the same household in order to use any of the recreational facilities or recreational building (club- house); 

• When using the clubhouse, persons under ten (10) years old must be accompanied by an adult resident; use of the billiards room was restricted to residents over eighteen (18) years old; 

• Use of the spa was prohibited to children under eighteen (18) years old; 

• Use of the pool by children fourteen (14) years old and under required accompaniment by a resident; 

• Bicycle riding by anyone is prohibited unless accompanied by adult resident parent or adult host; 

• Parent of resident child or resident host must accompany children at all times in the pool or pool area;
• Guests and residents under the age of eighteen (18) years old are permitted to use the swimming pool and sun deck from the hours of 9.00 a.m. to 12 noon only and must be accompanied by the parent or resident child or resident host;
• No one under the age of eighteen (18) years old is permitted in the billiard room at any time;
• No one under the age of four- teen (14) years old is allowed to use the Jacuzzi;
• At 2:00 p.m. children are to be out of the pool area;
• Children are not to walk around the park without adult supervision;
• Minors under 16 years old are not permitted in the therapeutic pool;
• For safety, children are not to ride bicycles, roller skates, skateboards, play in the street, play in RV storage, car wash, or wander around the park;
• Children under 8 years old shall be confined to a play area in the rear fenced yard of the family residence;

Age restrictive rules are “facially” discriminatory when they treat children, and thus, families with children, differently and less favor- ably than adults-only households. In other words, no matter how ad- ministered, the rules were invalid as drafted. Even if never enforced, such rules may lead to a resident’s belief about allowable restrictions in use of the facilities.

The FFHA 

In 1988, Congress amended the Federal Fair Housing Act (“FFHA”) to prohibit not just discrimination on the basis of race, color, sex, religion, disability or national origin, but also included “familial status” discrimination. “Familial status” is defined as “one or more individuals (who have not attained the age of 18 years) being domiciled with ... a parent or another person having legal custody of such individual or individuals.” Among other provisions, it is unlawful:

“To discriminate against any persons in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of ... familial status ...”

Thus, in an all-age community, restrictions on access or use of common facilities and amenities based on age of a child (“familial status”) is a violation of the FHAA, absent “compelling business necessity.” 5 Any such rule must be proved to be the “least restrictive means” to achieving a health and safety justification. What does this legalese mean to the parkowner in practical terms? A full blown trial, risks of heavy penalties, damages and attorney’s fees and costs. This is because there is no bright line test for any age-restrictive regulation: the law is bereft of any standards

or guidance to make a reasonable, predictable risk-assessment or likelihood of success. Each case de- pends on the facts and surrounding circumstances. In other words, each case is a “test-case.” In sum, the penalties are so severe that prudent counsel would admonish all to eliminate age-restrictive rules and regulations.

“Children” are as protected as any other protected class. Thus, a simple way to test a rule for FHAA compliance is this: insert any other protected class in the place of “children” when testing a rule and regulation. For example, a common past rule (and no longer a valid one) is “all children under 14 years of age must be accompanied by an adult resident when in the pool area.” How does this sound: “All Methodists must be accompanied by an adult resident. . .” Obviously, such a rule would violate the FHAA.

It is also a violation of the FHAA to express to agents, brokers, employees, prospective sellers, or renters a preference for certain types of ten- ants. Another issue is the use of selective advertisements, or denying information about housing opportunities to particular segments of the housing market because of their race, color, religion, sex, handicap, familial status, or national origin. It is a violation to place ads that specify a preference for: “mature ten- ants,” stating an aversion to “families with children, teenagers in the building; advertisements stating no more than “one child,” or stating that the parkowner does not “rent to children.” “Adult Community” at the entrance to a non-exempt com- munity also violates the FHAA. Use of the word “adult” without in- dicating it is housing for older per- sons, constitutes a violation of the

FHAA. There are no such things as “adult” mobilehome parks, and use of the phrase is deemed to chill family applicants from applying for tenancy in them.

The court held that these rules were not based on “compelling business necessity” and did not represent the “least restrictive” intrusions on “familial status” rights in promoting a health and safety interest. Having held that these rules were unlawful, the issues remaining for trial in the Plaza Mobile Estates case included damages, punitive damages, civil penalties, injunctive relief and attorney’s fees and costs for the private plaintiffs. While the action was brought as a class claim (in which all of possibly thousands of affected tenants could have been included in damages awards), class certification efforts were defeated, allowing only the named parties to seek damages.

The court’s comments regarding the invalidation of these rules is telling and troubling. The court stated that the age restrictive rules were “facially” discriminatory. In other words, no matter how ad- ministered, the rules were invalid as drafted. Even if never enforced such rules might dissuade a prospective applicant from applying for tenancy.

What Can We Do to Avoid This Mine Field? 

Even in the absence of specific rules and the ability to craft them, educational materials may help parents understand common risks associated with the very youth. When educational information is provided as an adjunct to an activity rather than a rule restricting an activity, the chance of a claim of discriminatory preference is less likely to be made. For example, when a parkowner offers such educational material from organizations who seek better protection of children (e.g., police departments, charitable organizations, etc.), the parkowner is providing a service - disseminating information and facts - not discriminating against children. 6

Conclusion 

All the parkowner wants is to know what the law is! What we do know is that certain rules are not permissible. Does it make any practical sense to promulgate new regula- tions affecting treatment of children? No.

The best policy for the all-age park is to have no references to children, child, adult, or other words which suggest differential treatment be-tween adults and children. The de- cisions affecting the young are for the parents to decide on.

Even with neutral rules and regulations, the enforcement of the rules needs to be considered. Does your manager have different attitudes, tone, manner or demeanor in general in dealing with kids and their parents? There is no room for derogatory comments, insults, or force beyond the same level applied to parents and other childless adults. Our mantra: Professional- ism. First and always! ◆

5. Some cases phrase the test differently (least restrictive, narrowly tailored, not speculative, etc.), but the reader is best advised to apply the standards applicable to the most stringent precedents in effect at this time, until variations on the articulation of the proper test for rules is made judicially and clear through further appellate court development. This is what plaintiff lawyers do. They will make the claim that the rules do not pass muster under the most difficult of possible tests. If you wish to preclude court tests of your rules, they will be drafted based on clearing the highest possible legal hurdles.

6. For example, educational material exist which explain that young children have peripheral vision which is two-thirds that of an adult; they have difficulty determining the source of sounds; traffic noises and sirens may be confusing; they may not understand that an automobile may seriously hurt or kill them; most children cannot understand a complex chain of events; children believe that all grownups will look out for them; they think that if they can see an adult driving a car toward them, the driver must be able to see them; children often mix fantasy with reality - they may give themselves superhuman powers and do not understand that a moving vehicle can hurt them; they have difficulty judging the speed and distance of oncoming vehicles.

Terry R. Dowdall, Esq. has specialized in manufactured home communities’ law since 1978. Mr. Dowdall can be reached at Dowdall Law Offices, APC Orange County office; 284 North Glassell Street, 1st Floor, Orange, CA 92866; 714.532.2222 phone; 714.532.3238 fax. email: trd@dowdalllaw. net; www.dowdalllaw. com.

This article is reprinted from WMA "Reporter", July 2016.  MHCO would like to express our deep appreciation to WMA for their permission to reprint this informative article.