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Answer. Yes and no. ORS 90.510(4) provides that all rental agreements must contain certain provisions, and that unless the law allows otherwise, they may not be unilaterally amended without the consent of both parties. Subsection 90.510(5) sets forth the contents of the rental agreement, and subsection (5)(i) provides that it must describe:

"(a)ny conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria... ." (Emphasis added.)

ORS 90.680(10)(a) provides that if a landlord receives an application for tenancy from a prospective purchaser "

The landlord shall accept or reject the prospective purchaser's application within seven days following the day the landlord receives a complete and accurate written application. An application is not complete until the prospective purchaser pays any required applicant screening charge and provides the landlord with all information and documentation, including any financial data and references, required by the landlord pursuant to ORS 90.510 (5)(i). (Emphasis added.)

ORS 90.680(10)(c provides that if a landlord receives an application for tenancy from a prospective purchaser:

(c) The landlord may not unreasonably reject a prospective purchaser as a tenant. Reasonable cause for rejection includes, but is not limited to, failure of the prospective purchaser to meet the landlord's conditions for approval as provided in ORS 90.510 (5)(i) or failure of the prospective purchaser's references to respond to the landlord's timely request for verification within the time allowed for acceptance or rejection under paragraph (a) of this subsection. (Emphasis added.)

ORS 90.10(40) defines "Screening or admission criteria" to mean:

'_a written statement of any factors a landlord considers in deciding whether to accept or reject an applicant and any qualifications required for acceptance. "Screening or admission criteria" includes, but is not limited to, the rental history, character references, public records, criminal records, credit reports, credit references and incomes or resources of the applicant."

Based upon the above, I believe that since the rental agreement may not be unilaterally modified, you are safer having all of your screening criteria in that document, than putting them elsewhere.

If there are other issues, e.g. with the condition of the home, when you learn that it is going to be sold on-site, you can issue a repair notice under ORS 90.620. That statute is quite useful in these situations. It provides that you can give the resident a 30-day notice of termination based upon repair or deterioration issues. Depending on the degree of repair work necessary, the resident can request additional time.

While it is probably true that the resident may not want to do the work, if and when a purchaser is found, you may give that notice to the purchaser. Putting the home up for sale will not extend the compliance period. Thus, in giving the notice to the prospective purchaser, the issue becomes one of negotiation between seller and buyer. If they reach agreement (which will likely include some price concessions), if the work cannot be completed before the pending transaction closes, you can include completion deadline in the new rental agreement. The new purchaser cannot take possession without first signing the rental agreement and committing to a completion date.

Does all this mean that you cannot or should not develop a resale compliance form for your community? No. But to be forewarned is to be forearmed. In other words, an existing resident could push back if they did not like the provisions, and they might win that argument. The work-around, is that you should make sure your rental agreement contains a good set of screening criteria. MHCO's is very complete. And if the home is in need of repair, you can always issue a 90.632 notice, and secure compliance either from the existing resident, or their prospective purchaser. Since you can make this a condition of acceptance of the prospective purchaser, and it will be written into the new rental agreement, I submit that you will be holding the better hand.

Answer.   ORS 90.100(38) defines the “Rental agreement” as: “…all agreements, written or oral, and valid rules and regulations adopted under ORS 90.262 or 90.510 (6) embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises. “Rental agreement” includes a lease. A rental agreement shall be either a week-to-week tenancy, month-to-month tenancy or fixed term tenancy. (Emphasis added.)

So technically, “rules” are really a part of the rental agreement. Of the many definitions of terms in ORS 90.100, there is no separate definition of “rules”.  However, they are given different treatment throughout the Oregon Residential Landlord Tenant Agreement.

For example, ORS 90.262 (Use and occupancy rules and regulations; adoption; enforceability; restrictions) explains the intent and purpose behind rules and regulations. It provides:

90.262 (1) A landlord, from time to time, may adopt a rule or regulation, however described, concerning the tenant’s use and occupancy of the premises. It is enforceable against the tenant only if:

      (a) Its purpose is to promote the convenience, safety or welfare of the tenants in the premises, preserve the landlord’s property from abusive use, or make a fair distribution of services and facilities held out for the tenants generally;

      (b) It is reasonably related to the purpose for which it is adopted;

      (c) It applies to all tenants in the premises in a fair manner;

      (d) It is sufficiently explicit in its prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant must or must not do to comply;

      (e) It is not for the purpose of evading the obligations of the landlord; and

      (f) The tenant has written notice of it at the time the tenant enters into the rental agreement, or when it is adopted.

      (2) If a rule or regulation adopted after the tenant enters into the rental agreement works a substantial modification of the bargain, it is not valid unless the tenant consents to it in writing.

      (3) If adopted, an occupancy guideline for a dwelling unit shall not be more restrictive than two people per bedroom and shall be reasonable. Reasonableness shall be determined on a case-by-case basis. Factors to be considered in determining reasonableness include, but are not limited to:

      (a) The size of the bedrooms;

      (b) The overall size of the dwelling unit; and

      (c) Any discriminatory impact on those identified in ORS 659A.421.

      (4) As used in this section:

      (a) “Bedroom” means a habitable room that:

      (A) Is intended to be used primarily for sleeping purposes;

      (B) Contains at least 70 square feet; and

      (C) Is configured so as to take the need for a fire exit into account.

      (b) “Habitable room” means a space in a structure for living, sleeping, eating or cooking. Bathrooms, toilet compartments, closets, halls, storage or utility space and similar areas are not included. [Formerly 90.330]

The above element of lawful rules bear re-reading, since occasionally, I have seen landlord enforcement actions against tenants attacked for failure to comply with ORS 90.262, especially the portion of the statute that provides rules must be “…reasonably related to the purpose for which it is adopted.”

ORS 90.302(3)(a) (Fees allowed for certain landlord expenses; accounting not required; fees for noncompliance with written rules; tenant remedies) provides that

A landlord may charge a tenant a fee under this subsection for a second noncompliance or for a subsequent noncompliance with written rules or policies that describe the prohibited conduct and the fee for a second noncompliance, and for any third or subsequent noncompliance, that occurs within one year after a written warning notice described in subparagraph (A) of this paragraph. Except as provided in paragraph (b)(H) [unauthorized pet] of this subsection, the fee may not exceed $50 for the second noncompliance within one year after the warning notice for the same or a similar noncompliance or $50 plus five percent of the rent payment for the current rental period for a third or subsequent noncompliance within one year after the warning notice for the same or a similar noncompliance. 

ORS 90.510(2) (Statement of Policy) requires that both the rental agreement and the rules “…shall be attached as an exhibit to the statement of policy.”

Subsection (5) of ORS 90.510 (Statement of Policy) has similar, but not exactly the same language as quoted in ORS 90.262 above:

  (6) Every landlord who rents a space for a manufactured dwelling or floating home shall provide rules and regulations concerning the tenant’s use and occupancy of the premises. A violation of the rules and regulations may be cause for termination of a rental agreement. However, this subsection does not create a presumption that all rules and regulations are identical for all tenants at all times. A rule or regulation shall be enforceable against the tenant only if:

      (a) The rule or regulation:

      (A) Promotes the convenience, safety or welfare of the tenants;

      (B) Preserves the landlord’s property from abusive use; or

      (C) Makes a fair distribution of services and facilities held out for the general use of the tenants.

      (b) The rule or regulation:

      (A) Is reasonably related to the purpose for which it is adopted and is reasonably applied;

      (B) Is sufficiently explicit in its prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant shall do or may not do to comply; and

      (C) Is not for the purpose of evading the obligations of the landlord.

      (7)(a) A landlord who rents a space for a manufactured dwelling or floating home may adopt a rule or regulation regarding occupancy guidelines. If adopted, an occupancy guideline in a facility must be based on reasonable factors and not be more restrictive than limiting occupancy to two people per bedroom.

      (b) As used in this subsection:

      (A) Reasonable factors may include but are not limited to:

      (i) The size of the dwelling.

      (ii) The size of the rented space.

      (iii) Any discriminatory impact for reasons identified in ORS 659A.421.

      (iv) Limitations placed on utility services governed by a permit for water or sewage disposal.

      (B) “Bedroom” means a room that is intended to be used primarily for sleeping purposes and does not include bathrooms, toilet compartments, closets, halls, storage or utility space and similar areas.

ORS 90.610(3) (Informal dispute resolution; notice of proposed change in rule or regulation; objection to change by tenant) explains how rules are changed:

The landlord may propose changes in rules or regulations, including changes that make a substantial modification of the landlord’s bargain with a tenant, by giving written notice of the proposed rule or regulation change, and unless tenants of at least 51 percent of the eligible spaces in the facility object in writing within 30 days of the date the notice was served, the change shall become effective for all tenants of those spaces on a date not less than 60 days after the date that the notice was served by the landlord.

      (4) One tenant of record per eligible space may object to the rule or regulation change through either:

      (a) A signed and dated written communication to the landlord; or

      (b) A petition format that is signed and dated by tenants of eligible spaces and that includes a copy of the proposed rule or regulation and a copy of the notice.

      (5) If a tenant of an eligible space signs both a written communication to the landlord and a petition under subsection (4) of this section, or signs more than one written communication or petition, only the latest signature of the tenant may be counted.

      (6) Notwithstanding subsection (4) of this section, a proxy may be used only if a tenant has a disability that prevents the tenant from objecting to the rule or regulation change in writing.

      (7) The landlord’s notice of a proposed change in rules or regulations required by subsection (3) of this section must be given or served as provided in ORS 90.155 and must include:

      (a) Language of the existing rule or regulation and the language that would be added or deleted by the proposed rule or regulation change;

Subsection (7) of ORS 90.610 provides the statutory form to follow when changing rules.

In regards to rental agreements, ORS Chapter 90.510(4) mandates the minimal provisions that must appear in the rental agreement:

Every landlord who rents a space for a manufactured dwelling or floating home shall provide a written rental agreement, except as provided by ORS 90.710 (2)(d) [enforceability of oral rental agreements]. The agreement must be signed by the landlord and tenant and may not be unilaterally amended by one of the parties to the contract except by:

      (a) Mutual agreement of the parties;

      (b) Actions taken pursuant to ORS 90.530, 90.533, 90.537, 90.543 (3), 90.600, 90.725 (3)(f) and (7) or 90.727; or

      (c) Those provisions required by changes in statute or ordinance.

      (5) The agreement required by subsection (4) of this section must specify:

      (a) The location and approximate size of the rented space;

      (b) The federal fair-housing age classification;

      (c) The rent per month;

      (d) All personal property, services and facilities to be provided by the landlord;

      (e) All security deposits, fees and installation charges imposed by the landlord;

      (f) Any facility policy regarding the planting of trees on the rented space for a manufactured dwelling;

      (g) Improvements that the tenant may or must make to the rental space, including plant materials and landscaping;

      (h) Provisions for dealing with improvements to the rental space at the termination of the tenancy;

      (i) Any conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;

      (j) That the tenant may not sell the tenant’s manufactured dwelling or floating home to a person who intends to leave the manufactured dwelling or floating home on the rental space until the landlord has accepted the person as a tenant;

      (k) The term of the tenancy;

      (L) The process by which the rental agreement or rules and regulations may be changed, which shall identify that the rules and regulations may be changed with 60 days’ notice unless tenants of at least 51 percent of the eligible spaces file an objection within 30 days; and

      (m) The process by which the landlord or tenant shall give notices.

Conclusion.  So, in my opinion, the differences between rules vs. rental agreement, can be generally summarized as follows:

• The contents of what goes into rules, are not specifically described in the Oregon Residential Landlord Tenant Laws – the only general guidance is that they must be fairly applied, and reasonably related to the purpose for which they were enacted.
• The rental agreement must address certain issues, as set forth in ORS 90.510(4), above.
• A violation of either the rules or the rental agreement can result in a for cause notice of termination under ORS 90.630.
• While rental agreements cannot generally[1] be unilaterally changed by the landlord, there is a clear process under the law for amending the rules.
• So while “rules” are technically a part of the overall “rental agreement” between the landlord and tenant, they are the “mortar” that fills in the gaps the rental agreement doesn’t cover. So for example, while the rental agreement may require that tenants conduct themselves in such a manner as to preserve their neighbor’s quiet enjoyment of their spaces, the rules may address more specifics of this duty, such as lawn mowing, leaf blowing, loud parties, etc.
• I frequently see much unnecessary overlap in rules and rental agreements, e.g. covering the same things, or covering them inconsistently. This is unfortunate, since it can create confusion among tenants. My rule of thumb would be that in the event of an inconsistency, you should not try to enforce a specific prohibition in one of the documents, if the other is more lenient. Or to put it another way, in the event of two provisions addressing the same issue, landlords should enforce the more lenient of them.

[1] There are several exceptions relating to changes which, for example, permit landlords to take advantage of newer statutes that give rights not formerly described by the law or found in rental agreements, such as the right to submeter spaces, etc.

When visiting your local emergency agency or the American Red Cross to find out about potential problems in your area, ask for assistance in evacuation and shelter planning. They should be able to tell you what types of shelters are available in your area or which sites would be set up as shelters if a disaster occurs. These would include local schools, community centers, churches, offices or other buildings capable of holding a large number of people temporarily.

If there are children in your community, check with local schools to learn their evacuation and shelter plans. In the case of an emergency, parents will want to know where their children will be taken and other steps the schools have prepared for. (If these preparations are not adequate, parents should get involved and make sure that such plans are in place.) This information should be made available to residents in your community through the schools or through a community newsletter or education program.

Some manufactured home communities may have an office or community building that can be used as a shelter in case of an immediate emergency. In the case or tornadoes or severe storms, this should have a below-grade basement or some other underground area. In other situations, such as floods or hurricanes, the community shelter will not provide maximum protection and designated shelters may e several miles away.

Make sure that your residents understand the difference between an immediate emergency and an evacuation. For example, when a tornado warning has been issued, they must go to the shelter immediately. If a hurricane warning is issued, an evacuation is in order.

A good evacuation plan is very important - all residents should be familiar with it and have practiced it. To develop this plan, work with the residents' committee. Start with a detailed plan of the community that shows all roads and all homes. Then look at the following things:

• How many entrances and exits are there in the community? Are they clearly marked?

• If there is more than one exit, which sections of the community should use each exit?

• In what order should each block or section leave? (Families near an exit should go first, as they will be the easiest and quickest to move.)

• Is there a bottleneck that can be fixed, or are there barriers that could be removed in an emergency to make evacuation easier?

• If an exit is blocked by the disaster, what other exits are available?

• Are there residents who will not be able to evacuate themselves and who will require help from others?

When you have identified the answers to these questions, develop the evacuation plan accordingly. For each exit, assign blocks or sectors of the community that will use the exit. Then give each resident a note about the exit they should use and the order in which they will leave. For example, residents with a Number 1 designation should go first and be given a certain time period in which to do so. Then Number 2, Number 3 and so on. Orderly evacuation is the goal.

Give residents of the community a copy of the evacuation plan for their neighborhood, a map of the community and surrounding areas, a list of potential shelters they can go to, and an alternate exit to use if they can't use the exit they are supposed to use.

They should also be told what kind of notice they will get when evacuation is ordered. If the community has a warning siren or other audio system, what does each signal mean? Can every home in the community hear the signal? Will there be a phone "chain"?

For most communities, it's a good idea to have a primary warning system, such as a siren, and a back-up plan, such as a phone chain or door-to-door notification.

In a phone chain, Person A calls Person B through F. Persons B through F call five more people, and so on. It's important to keep residents and their phone numbers up-to-date if the phone chain is going to work well.

Residents also need to practice the evaucation. This is a program that is best run by your community's Resident Disaster Planning Committee.

Answer. Notwithstanding the fact that you do not have anything in your Rules or Rental Agreement prohibiting the use, growing, or selling marijuana does not mean you cannot prohibit the activity. Granted, it would be far better if you had something in the park documents about this topic, but the still require that residents obey state and federal laws, rules, and ordinances.

Here is the short version of my answer:

Under the Federal Controlled Substances Act, 21 U.S.C. _ 801, et seq. ("the Act"), it is illegal to manufacture, distribute, and possess marijuana, also known as "cannabis. Under the Act, possession of marijuana, even when used for medical purposes, is a violation of Federal law.

In Oregon, medical use of cannabis is legal, subject to the limitations set forth in ORS 475.300 to 475.342. Commencing on July 1, 2015, subject to certain limitations and restrictions, the recreational use of marijuana also became legal.

Federal law supersedes state law where there is a direct conflict between these laws. This means that even though Oregon permits medical and recreational use of marijuana, and marijuana products, Federal law controls, and these activities remain illegal. (See, Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Ore. 159, 230 P.3d 518 (2010)).

Accordingly, find the sections in your Rules and Rental Agreements requiring that residents obey the law. Include it in a 30-day notice under ORS 90.630(1)(a), which provides:

'_the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days' notice in writing before the date designated in the notice for termination if the tenant: (a)Violates a law or ordinance related to the tenants conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740 (Tenant Obligations);

ORS 90.740(3) (Tenant Obligations) provides:

Behave, and require persons on the premises with the consent of the tenant to behave, in compliance with the rental agreement and with any laws or ordinances that relate to the tenants behavior as a tenant.

You may also cite ORS 90.740(4)(j) in the 30-day notice. It provides that tenants must:

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.

You should then enact a rule change, and institute a policy that prospectively prohibits the use, cultivation and selling of marijuana and marijuana products.

The nationwide need for affordable housing is a boon to our wider industry. Many factories across the US are operating at capacity, or even adding shifts. In recent years, customers could expect their homes delivered within three or four weeks after ordering; due to current production demands, it's now common to wait six or eight weeks, or even longer.

Financing for buyers of manufactured homes in parks is STILL very difficult and expensive.

The collapse of the manufactured home consumer lending market in the late 1990s and early 2000s resulted in far fewer lenders, and more stringent underwriting standards. As a result, qualifying for a manufactured home loan is a real challenge to the consumers who most need affordable housing.

I just sold a new home in my park and saw firsthand how difficult it is for a buyer. The buyer was a parent who would be the sole borrower, but needed his daughter on title to comply with my park's requirements. This is known as a 'Buy-for' and has for decades been a common scenario for the major lenders who fund home sales in parks; but this particular bank had recently changed its underwriting guidelines and the Buy-for became an issue at the 11th hour, resulting in a two-week delay.

Then, the bank realized it had somehow transposed the borrower's social security number with another application throughout the process, and upon discovering my buyer's credit score was lower than they thought, demanded 35% down payment instead of the 20% they were prequalified on. Another two-week delay. At that point, the buyer bypassed the mortgage broker and started calling the bank directly, pleading and on the verge of a nervous breakdown because he'd passed on other housing options for his daughter on the bank's assurances that this loan was teed up and closing imminently.

The end results:

• A ten-week process from buyer's initial loan application to funding of loan (from one of the largest providers of such loans).
• An appraisal that valued the brand-new Energy Star, option-loaded home at less than 70% of what I paid the factory for it.
• The buyer paid 35% down payment ($17,500) on a $50,000 purchase.
• Closing fees, points and broker's commission were added into the loan balance and amortized.
• The buyer was subjected to stressful false starts and apparently unanchored underwriting standards...
• ... and he's paying 13.5% APR for the privilege of getting the loan!

These types of lending barriers -- combined with the restrictions and liability risk foisted on park owners under the Dodd-Frank act - illustrate the pressures of the market that are suppressing manufactured housing sales, compared to past markets where credit was more accessible.

Though the process was sometimes excruciating for the buyer, he and his daughter (my new resident) are thrilled with the outcome: They own a brand new, warrantied, Energy-Star rated 2 bed/1 bath home with covered front porch, gabled entry, lap siding, 12" eaves, stainless appliances, gas furnace/water heater/range, skylights, upgraded cabinets and carpet, set up in the middle of the hottest real estate market in the nation... and purchased at $72/square foot. See photo at top of page.

Federal Section 8 Vouchers can now be used to purchase manufactured homes

President Obama signed the Housing Opportunity through Modernization Act of 2016 (H.R. 3700) into law on July 29th, 2016. Among other actions, this law authorizes Section 8 housing vouchers to be used toward the full annual cost of purchasing a manufactured home.

As there are more than two million households in the US receiving federal housing assistance through Section 8, this could be a significant boost to the industry, and to low-income residents who desire to be homeowners.

Perhaps this is an early indicator of evolving social attitudes towards manufactured housing, and the benefit we provide to our residents as community owners..?

Sell your park to residents and pay no state capital gains tax

Did you know that Oregon law provides a full state capital gains tax exemption to park owners who sell their communities to a tenant's association, or similar entity? Depending on your individual tax situation, this exemption could save you many thousands of dollars in tax liability upon sale!

ORS 316.792 amended Oregon tax law to authorize the exemption. It reads in part: 'To qualify, the park must have been sold to a tenant's association nonprofit organization, community development corporation, or a housing authority.'

As a mobile home park real estate broker, I often work with CASA (Community Assistance and Shelter Association), a nonprofit organization that assists park residents in creating tenant's associations to purchase their communities. If you are considering selling your park, there are several advantages to considering a resident purchase through CASA. Call me at 503-653-3887 if you have any questions.

Contact Information:

Multifamily and Mobile Home Park Investing
3215 SE Raymond St.
Portland, OR 97202

Tel: 503-242-0033
Fax: 503-281-4054
Cell: 503-653-3887
tydowning@westernequities.com

Answer. This is a good question, but one that requires an understanding of several different issues.

You will notice that Form 47 for maintenance and clean up does not attempt to terminate the tenancy. It is merely a notice, or reminder. You may issue it as frequently as necessary, and even though you are aware of the default, you may continue to accept rent without it constituting a waiver to later issue a curable 30-day notice of termination for the same non-compliance.

Oregon landlord-tenant law expressly allows a landlord to accept rent after becoming aware of certain violations. See, ORS 90.412(4)(d). In summary, they include:

1. Disrepair or deterioration of the manufactured dwelling; and
2. A failure to maintain the rented space.

And ORS 90.412(5)(a) provides that for "ongoing violations" (e.g. failure to maintain the space or failure to repair the home), a landlord's written warning notice (e.g. Form 47), remains effective for 12 months and may be renewed with a new warning notice before the end of the 12 months. This has the effect of preserving the landlord's right to take action at some time in the future, while accepting rent during the interim. Thus, Form 47 is a less aggressive version of a 30-day notice of termination of tenancy under ORS 90.630 (for space maintenance issues), or ORS 90.632 (for repairs to the exterior of the home).

To reiterate: If the violation relates to the space, and the resident has consistently refused to clean it up, Form No. 47 is appropriate. The resident must do so within 30 days, or the tenancy will automatically terminate; if the violation relates to the home, and the resident has refused to perform the necessary repair, Form No. 55 is appropriate. This form is similar to the 30-day notice for space maintenance, but provides additional time for compliance depending on the nature of the repair, e.g. painting, which may not be feasible during the winter months.

When is Form 47 appropriate? In almost all instances when the violation is not something you want to immediately terminate the tenancy for, this is the better choice. If it becomes necessary to issue a curable 30-day notice of termination under ORS 90.630 for a failure to maintain the space (MHCO Form 43), or a curable 30-day notice of termination for damage or deterioration to the home (MHCO From 55) under ORS 90.632, you want to have one or more (preferably more) MHCO Form 47s in the resident's file, so it shows that you tried to work with the resident but they ignored you.

Remember, judges don't like terminating tenancies in manufactured housing communities, as it essentially forces the homeowner to vacate and sell their home (since the cost or ability to relocate it may be problematic based upon a lack of financial resources or the home's age).

Also, when the resident is elderly and on a fixed income, most landlords and managers would prefer not to terminate his or her tenancy based upon, say, the condition of the home, preferring instead to wait until it is sold or inherited by a family member.

Lastly, think of it this way: Once you issue a 30-day notice to terminate a tenancy, what are you going to do if the resident ignores you? You really have no choice but to proceed with eviction. And until you do so, you cannot accept rent from the tenant beyond the last day of the termination period. So when issuing a 30-day notice of termination, you are drawing a line in the sand, and your options become more limited. Again, would you not rather be in court on a notice of termination after having given the tenant three form 47s that were ignored? That way the judge knows that you tried to work with the resident, and that he or she brought the termination upon themselves.

Answer. ORS 90.537(3) provides:

If the cost of the tenant's utility or service was included in the rent before the conversion to submeters, the landlord shall reduce the tenant's rent on a pro rata basis upon the landlord's first billing of the tenant using the submeter method. The rent reduction may not be less than an amount reasonably comparable to the amount of the rent previously allocated to the utility or service cost averaged over at least the preceding one year. *** Before the landlord first bills the tenant using the submeter method, the landlord shall provide the tenant with written documentation from the utility or service provider showing the landlord's cost for the utility or service provided to the facility during at least the preceding year.

The source of this confusion lies in the fact that utilities are paid for in arrears (i.e. based on meter readings after the service has been provided). However, rent is always paid for in advance (i.e. before the occupancy commences for the current month).

So, on December 1, when you were still charging residents a gross rent figure (inclusive of utilities) from their point of view it was to cover all utilities for the entire month, going forward. Thus, their first direct utility payment on January 15 would appear, from their point of view, to include the December 15 - 31 period, and therefore be a "double payment" - i.e. something they'd effectively paid for in their December gross rent payment.

But in actuality, when the residents paid their gross rent on December 1 - inclusive of utilities - it was correctly used by you to pay the December 15 utility bill which covered the November 15 - December 15 period. What you paid for on December 15 was never applied by your provider to the remainder of the month going forward, i.e. December 15 to December 31. Thus, the December 15-31 utility period remained unpaid, and could not be paid until the following month, i.e. January 15.

On January 1, when the residents pay their new reduced rent, it will not include sewer and water. And on January 15, when they directly pay their utility provider, it will be based upon the water meter readings for the period of December 15 to January 15.

Does this mean that when the residents pay the utilities on January 15, they are picking up one half of a utility bill you should be paying, i.e. the December 15 - 31 utilities? I don't believe so. Until their January 15 payment, the utility bill for the December 15-31 period had never been paid.

Conversely, if you were required to make a partial payment toward the utility bill on January 15, 2017 covering the last 16 days of December, the result would be that (a) on December 15 you would have paid for utilities going back to November 15, and (b) on January 15 you would have paid for utilities covering the period from December 15 to December 31, i.e. a 45-day period - even though the residents only paid December's rent.

As confusing as this is, I'm comfortable that the residents are not making a "double payment", in that they are not paying for something that was already paid before, and now they are paying again. The utilities for the period of December 15 - 31 were never paid in December.

Question No. 2. Our community was submetered a few years ago. At first the tenants paid exactly what the city's charges were for water and sewer. The city had a structured billing arrangement for sewer, which annualized the costs over the entire calendar year. Since sewer bills are tied to the water consumption, annualizing them reduced the summer sewer bills (when water consumption is higher) than they would have been if directly tied to actual water consumption. Then the sewer rates changed with no further annualization. So the sewer bill is now quite high in the summer. My question is: What do the submetering statutes say about what can be charged to the residents? Can a park charge exactly what the city charges for residential water and sewer? I have read that the owner of the park cannot make a profit on the water charges. But charging the same as the city shouldn'tcause a profit for the owner, should it?

Answer. ORS 90.536 provides that subject to the following exceptions, a landlord may not bill or collect more money from tenants for utilities or services than the utility or service provider charges the landlord. The statute further provides that a utility or service charge assessed to a tenant may not include any additional charges, including landlord costs for the installation or maintenance of the utility or service system, or any profit added on. Following are the only recognized exceptions under the statute:

1. The cost of the utility or service provided to the tenants space and under the tenants control, as measured by the submeter, at a rate no greater than the average rate billed to the landlord by the utility or service provider, not including any base or service charge;

2. The cost of any sewer service for wastewater as a percentage of the tenants water charge as measured by a submeter, if the utility or service provider charges the landlord for sewer service as a percentage of water provided;

3. A pro rata portion of the cost of sewer service for storm water and wastewater if the utility or service provider does not charge the landlord for sewer service as a percentage of water provided;

4. A pro rata portion of costs to provide a utility or service to a common area;

5. A pro rata portion of any base or service charge billed to the landlord by the utility or service provider, including but not limited to any tax passed through by the provider; and

6. A pro rata portion of the cost to read water meters and to bill tenants for water if: (a) a third party service reads the meters and bills tenants for the landlord; and (b)The landlord allows the tenants to inspect the third party's billing records pursuant to ORS 90.538 (Tenant inspection of utility billing records).

Background

The FLSA generally requires employers to pay a minimum wage (currently $7.50 an hour) for all hours worked, as well as overtime pay at time and one-half the employee's regular rate of pay for all hours worked in excess of 40 in a workweek. Oregon law imposes similar, but not identical, requirements. Effective July 1, 2016, depending on where your employees work, the Oregon minimum wage currently ranges from $9.50 to $9.75 per hour. The minimum will increase annually and will eventually reach a maximum range of $12.50 to $14.75 an hour, with subsequent increases based on increases to the Consumer Price Index.

In addition to establishing a minimum wage, Oregon law and the FLSA also require covered employers to pay overtime wages at time and one-half the employee's regular rate of pay for all hours worked over 40 in a workweek. Like the minimum wage requirements, the overtime rules apply unless the employee is "exempt"; non-exempt employees are subject to the overtime rules and must be paid accordingly for hours worked beyond 40 in a workweek.

Who's Exempt?

Both Oregon law and the FLSA provide certain exemptions from the overtime requirements. Most common are the so-called "white collar" exemptions: the executive, administrative, and professional exemptions. The white collar exemptions are not identical under Oregon law and the FLSA, but they are similar. To be exempt under one of the white collar exemptions, an employee must satisfy a duties test, a salary threshold test, and a salary basis test.

The "salary basis" test requires that exempt employees be paid a fixed amount per pay period, and the amount is not subject to variance due to the quality or quantity of work produced. While both Oregon and federal law provide a limited number of specific exceptions, employers generally may not make deductions from an exempt employee's salary without putting the overtime exemption at risk. Ordinarily, except for permissible deductions, or additions such as bonuses or commissions, one would expect to see an identical amount of gross wages on an exempt employee's pay check from pay period to pay period.

The "salary threshold" test imposes a minimum salary requirement. Under Oregon law, the minimum salary is simply 40 times the minimum wage. Since 2004, the FLSA minimum salary has been $455 per week ($23,660 annually). However, that number is about to increase-substantially. Effective December 1, 2016, the minimum salary for an exempt "white collar" employee will be $913 a week ($47,476 annually). Regardless of their duties, "white collar" employees generally will be non-exempt if they earn less than $913 per week.

In determining whether an employee satisfies the minimum salary after December 1, 2016, the FLSA will allow employers to count non-discretionary bonuses and "catch up" payments once a quarter. However, the salary threshold must be paid "exclusive of board, lodging, or other facilities." Consequently, the cost or market value of housing provided to a manager may not count toward the $913 weekly minimum salary.

If an employee satisfies the "salary basis" and "salary threshold" tests, then the employee will be exempt from FLSA and Oregon overtime if the employee also meets the duties test for the particular "white collar" exemption at issue, whether it is the executive, administrative, or professional exemption. While an examination of the duties test is beyond the scope of the article, employers should remain mindful of a couple of points with respect to overtime exemptions. First, overtime exemptions are narrowly construed in favor of employees. Along the same lines, an employer always has the burden of proof when it comes to proving that a particular employee meets the salary and duties tests sufficient to qualify as exempt. Finally, while a good job description is useful, the employee's actual day-to-day duties will determine whether an overtime exemption applies.

Final Thoughts

Because of the litigation risks, employers confronted with close exemption situations simply may elect to treat the employee as non-exempt and pay overtime for hours worked over 40 in a workweek. It may also make sense in close cases to require the employees to record their hours to avoid inflated claims in litigation. In any event, employers should always thoroughly evaluate the employees they treat as exempt; be in a position to prove that an overtime exemption applies; and do not forget about the increased salary threshold requirements effective December 1, 2016. Do these things and the quality of your sleep is sure to improve.

*J. Kent Pearson, Jr. is an attorney at Bullard Law in Portland, Oregon. His practice focuses on employment law and advice. He works with business owners and managers to help them understand the issues and risks before problems arise. Kent has broad experience in counseling employers on wage and hour matters, employment agreements, employer personnel policies, plant closing and other labor and employment issues. Kent is licensed to practice law in Oregon.

The information presented is not intended as legal advice and should not to be acted on as such.

Answer. Here is a quick summary of ORS 90.725, the access statute for manufactured housing communities; it is quite long and complicated.

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
• to 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.

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

• serving notices
• emergency
• tenant requested repairs or maintenance
• per written yard maintenance agreement requires the landlord to perform yard maintenance, equipment servicing or grounds keeping for the space:

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 of the intent of the landlord to enter and the landlord or landlord's agent may enter only at reasonable times. 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.

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.

A landlord has no other right of access except:

• pursuant to court order;
• as permitted by ORS 90.410 (2) (Tenant's failure to give notice of absence);
• as permitted under ORS 90.539 (Entry to read submeter); or
• when the tenant has abandoned or relinquished the premises.

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. In addition, the landlord may recover actual damages.

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.

Based upon the above, it is my opinion that if you give 24 hour advance notice, you may install the lighting as a necessary safety feature for all residents. The same applies to repair of the lighting. However, here's the conundrum. If you ask for "permission" to install the new lighting, it could be denied, and then you have to go to court for permission. So rather than asking for "permission", I suggest you confer with the affected tenants and work with them on the access, i.e. presume you have the right to do so, and collaborate with the resident on timing, etc. Their main concern will likely be whether it will flood their house with light at night. You need to be sensitive to that issue.

Tips: When giving the 24-hour access (MHCO Form 51), it is sufficient if you give it at least 24 hours in advance covering a particular period of time. I don't recommend just 24 hours; if you know the installer will be out on October 10, don't give the notice on October 9. Give as much advance notice as possible. Secondly, if the installer will take three days to complete the job, you don't have to give 24-hours' notice each day they return. If you understand it will be a three day job, add a couple more for Murphy's law, and then give a notice saying something to the effect that "Commencing on XXX date and continuing until YYY day, ABC company will be at your space (No. ___) between the hours of ______ AM and ______ PM [times must be reasonable - PCQ] to install new safety lighting for the community." And presumably, since you've already addressed tenant concerns, that should suffice, and the advance collaboration will reduce the chance of push-back. Good luck!

But when all is said and done, the one thing that takes most of the community manager's time is handling guideline violations. How do you, as an extremely busy person, do this with only a minimum amount of time invested? How do you handle residents as a fragile yet necessary part of your business and still get everything else done without making them feel that they are an imposition to you? How do you notify and discuss a guidelines violation with a resident without starting World War III? And, most importantly, how do you facilitate correction of outstanding violations in a timely manner.

Steps Toward Resolution

As with anything, there are no easy answers to these questions. Resolving problems must start before there is a problem. That means starting with the administrative side of your community. For a first step, look at the document you use for your community guidelines. Is it clearly written? Are the guidelines reasonable? Are they enforceable?

The second step is the orientation process. It is imperative that as a community manager, you take time to discuss certain items with residents after they have been approved. The lease, the terms of the rental agreement, and the specific requirements and provisions contained in the guidelines are high on the list of items to discuss. Is this a time-consuming process? Most definitely. And is there an alternative? None that are really acceptable. New residents will probably sign a statement that says they received the guidelines, have read them and agree to abide by them, even if they haven'tread them.

This is the start of a major problem for you as a community manager. They will most likely not go home and read the guidelines and, therefore, won't call you with any questions, because they can't possibly have any. This is the beginning of a major problem for you as a community manager. Your first realization that there is a problem should be when you see them in violation of one or more of the guidelines. When they receive a notice, a phone call, or a visit from you, one of their first comments is almost sure to be, "No one told me I couldn'tdo that," followed by an incredulous look of disbelief.

As a community manager, you are now in the position of not only enforcing your guidelines, but defending and explaining them as well. This is not an enviable position,

because rarely do such interactions end quickly or peacefully. Residents feel insulted, defensive and that they must somehow come out on top in a contest of wills. A community manager that comes on too strongly, that threatens eviction over the littlest thing, or that appears to be unreasonable will not gain cooperation from this resident, now or ever.

The Nightmare Begins

Now you've begun a nightmare of a resident relations problem, and it's sure to affect resident retention. The simple act of discussing guidelines during the orientation process can usually eliminate most of this grief. Hand-in-hand with the discussion, the resident needs to acknowledge his responsibilities and agree to abide by the terms explained in the guidelines.

The acknowledgement was for years obtained in the form of a separate statement that the new resident signed.

This statement went something like: "The undersigned agrees that he has read and understands all requirements as presented in the guidelines, and agrees to adhere to the terms contained therein during the time he is a resident of this community."

A copy of the guidelines was then given to the resident for future reference. In reality, community managers usually cut corners in the presentation and discussion of the lease and the guidelines. The resident usually makes it eminently clear that he is trying to move, is in a hurry, and doesn'thave time for a lot of paperwork. What a shame for everyone. This is a resident who is headed for misunderstandings and a community manager who is headed for problems.

When discussing guidelines with a new resident, take time to talk about each and every term and provision. Then, request that the resident, and all adult members of the family, either initial or sign each page of the guidelines.

Laid Out in Black & White

When a resident violates one of the guidelines and you have those initialed pages, you have the ability to turn a potentially contentious situation into a routine notification process. It happens because you now are able to simply send a basic form letter that saying "It appears that you may have decided to alter your lifestyle in such a way that it no longer is aligned with the guidelines for this community. At the time you joined us as a resident, we discussed the guidelines that set acceptable parameters of behavior and responsibility for resident and management alike who live in (community name). Please call the office so that we may discuss your decision to change your lifestyle with you." Then, staple a copy of the initialed page with the violated guideline(s) currently being violated.

What happens is the realization on the part of the resident that he is caught dead to rights. There is no wiggle room here. There is no need for him to try to defend his actions or to tell you that he didn'tknow he was violating a guideline. And, there is no need for him to feel like he is backed into a corner and has to become aggressive or belligerent. Your notice simply acknowledges that he has made a choice, and asks for him to take time to discuss it with you.

Remember, the best resident relations program can be compared to a round room: If you don't back a resident into a corner where he has to defend himself you can truly have a productive conversation, mutual respect, and a meeting of the minds. If you force him to lose face; if you turn this type of situation into a confrontation where the battle lines are drawn; or if you place a large amount of importance on the "winning" of every disagreement, you've lost the resident relations game before you even started.

Resolve those guideline violations that frequently happen by using peer pressure, rewards, public recognition, and, once in a while, fear. By using all

these techniques and more, you can truly enforce your guidelines and build your resident relations program to new heights.

Yours will be the community run by a manager with a reputation for being fair, honest, and consistent. The time and emotional energy you spend on guideline violations will be greatly reduced, and the time you do spend in the future will be much more pleasant.

Where The Problems Lie

Which of your community guide-lines are violated the most often? What problems do you need to eliminate in order to better meet the goals of your community owner or to have a more professionally operated community?

Among these are reducing receivables; out-of-compliance clotheslines; the building of decks that are required as part of the initial installation but are still not done 60 days later; installation of skirting that is supposed to be done by a third party and remains undone; residents who ride bicycles on the community streets without paying attention to motorists; and residents who "forget" the streets have a speed limit and are not part of the Indianapolis Motor Speedway.