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Answer to Question 1: Generally, no. However, this isn'ta license to be rude to them. Let's start with the basics: If you are a legal 55+ community, you are not required to admit as residents, persons with children, i.e. those under the age of 18. If there are children in the community (perhaps before the facility converted to 55+, or simply because less than 20% of all spaces are occupied by persons with children), the park may do things that it could not do if it was a family park, such as prohibit children's Big Wheels and bicycles in the street. Generally, however, the best approach is to strive for 100% compliance with the 55+ laws in terms of occupancy. If you want to be a "safe" 55+ community, you will have rules that expressly say so; a rental/lease agreement that expressly says so; application and tenant home sale provisions that limit spaces to at least one occupant 55+; and generally hold yourself out in all advertising as a 55+ community. Of course, seniors are permitted to bring children (e.g. grandchildren, etc.) into the community, but the rules may place limits on the amount of time they may remain there.

Answer to Question 2: You need to go through the formal rule change process described in the statute. A rule that is not legally enacted, isn'treally an enforceable rule. However, you should immediately issue a written notice to all residents that based upon legal advice, those rules (identifying them) that appear to be discriminatory against children, will not be enforced. If you own a family park and are concerned that your rules may appear to "target" children, you should consult with your attorney for advice on how to proceed. Note that even if your rules don't appear to target children, if they, in fact, affect the activities of children more heavily than adults, they could still be deemed to be discriminatory (e.g. occupancy limits). And if you are a family park, but you have over 80% of the spaces occupied by at least one person age 55 or over, you should ask your attorney about "converting" to become a legal 55+ community. Until you do, even though 99% of the community's spaces are occupied by seniors, you're still a family park, and subject to the anti-discrimination laws protecting children.

Answer. I'm not a bankruptcy attorney, but can tell you generally what the process entails. The moment the resident files for bankruptcy - or even tells you they filed, you should halt any action you're in the process of taking. In the case of the 72-hour notice, you should not file for eviction, even though no rent payment was timely made. In the case of a 30-day notice, same thing; don't file for eviction even though correction was not timely made.

The main thing you want to verify is that, in fact, the resident did file for bankruptcy. In such case, they should be able to give you some evidence of the filing, such as the bankruptcy court filing number. Needless to say, if no filing was made, you are within your rights to proceed, at least until they do file, at which point you should then stop moving the matter forward legally. However, if the resident tells you they have taken out bankruptcy, you should assume it to be true unless and until you verify that that is not the case.

Once you have verified that the resident is in bankruptcy, the question is what you should do. Not being a bankruptcy attorney, I cannot tell you how long to expect the entire process will take before the resident exits the process. However, if you are listed in the bankruptcy petition, you will receive a notice of the First Meeting of Creditors, which you should attend. That will give you an opportunity to learn what the resident intends to do, i.e. abandon the home or remain there and resume paying rent. Your goal should be to have the resident resume making rental payments as soon as possible. You will have an idea whether that will occur at the First Meeting of Creditors. The same thing applies if the resident is under a curable 30-day notice.

If the situation is such that the tenant cannot pay, or cannot give you assurances that he or she can pay, or if the resident is under a default notice that is not curable, and you simply want them out, you should confer with a good bankruptcy attorney regarding your alternatives.

What you will likely be presented with from your attorney is a decision about whether you should file with the court to "lift" the bankruptcy stay of proceedings[1], so that you may complete whatever legal action you were in the process of taking when the filing occurred.

In the cases I have been involved with in the past, my experience was that if the bankruptcy stay was not going to assist the resident in dealing with his or her debts (e.g. it was a "no asset" case, and there was no chance the resident could pay the rent, etc.) the bankruptcy trustee would likely agree to lifting the stay so that your legal action could proceed. The decision to file is usually a cost-benefit analysis, e.g. what will the procedure cost, will it get the resident out sooner, and will you be able to get a rent-paying tenant into the space relatively quickly?

The take-away in all bankruptcy filings is (a) you do not want to take any steps (including a demand letter from a lawyer) against the resident the moment you know (or reasonably believe) he or she has filed for bankruptcy, and (b) you want to consult with an attorney to evaluate your legal alternatives. I have seen many cases where landlords simply stop, wait for the bankruptcy to be over, before pursuing legal action. That is a mistake. Too many times, the bankruptcy continues for several months, the resident has remained there rent-free for that time, and the landlord is the one who loses. The same thing applies when the resident has abandoned the premises and then files for bankruptcy. While you cannot legally proceed until the stay is lifted or the bankruptcy proceeding has either been dismissed or is completed, waiting without taking action to lift the stay means the space cannot be re-rented to anyone else.

[1] This means that upon filing, everything comes to a halt, i.e. it is "stayed."

Answer: You've already recognized that it really is a matter of personal preference and how each type of tenancy fits into your park's business model. There is certainly an advantage to having long-term tenants so that you have less turnover and you develop a good reputation as an option for residents who plan on staying awhile.

However, month-to-month tenants can only be evicted without cause on 30 days' written notice during the first year of the tenancy, and on 60 days' notice after the first year of tenancy. (But see special note below for Portland and Milwaukie landlords.) Additionally, state law now prohibits rent increases on monthly RV tenants during the first year of the tenancy and requires 90 days' written notice to raise the rent after the first year.

Conversely, week-to-week tenancies make it easier to evaluate a tenant in the short-term to ensure that he or she will work out in the long run. Weekly tenants can be evicted for no cause on 10 days' written notice and rent can be increased on 7 days' written notice. These are significant advantages when evaluating tenants as possible long-term residents.

The primary disadvantage in creating weekly tenants is the administrative burden. To create a week-to-week tenancy in Oregon, it must have all of the following characteristics: (1) occupancy charged on a weekly basis and payable no less frequently than every seven days; (2) a written rental agreement that defines the landlord's and the tenant's rights and responsibilities under Oregon law, and (3) no fees or security deposits, although the landlord may require the payment of an applicant screening charge.

In your situation, it might make sense to put new tenants on weekly agreements at least initially. If they seem to be working out, you can then offer them a new, monthly agreement later. MHCO Form 80 [Recreational Vehicle Space Rental Agreement] can be used for either weekly or monthly tenants. Just be sure to properly fill out the form and do not charge weekly tenants a security deposit or other fees (or you risk automatically making them monthly tenants right away).

Special Note Regarding RV Parks in Portland and Milwaukie: These two cities have enacted local ordinances that override state law and require a minimum of 90 days' written notice for no-cause evictions from the very beginning of a month-to-month tenancy. Landlords in these cities might want to seriously consider the week-to-week tenancy option for RV tenants since weekly tenancies are specifically exempt from this regulation in both cities.

Answer. I suspect you allowed the caregiver in without putting her on an Occupancy Agreement (MHCO Form No. 25 ). See, ORS 90.275. It gives you great latitude to control an occupant's activities, since violation can result in eviction action directly against the caregiver.

The following is a summary of my conversation with the Fair Housing Council of Oregon on the issue of whether landlords can put caregivers on Temporary Occupancy Agreements, rather than putting them on a Rental Agreement, or not putting them on any written agreement (which leaves in doubt their legal status if the Landlord wants them removed from the Community).

• If the caregiver doesn'tqualify based on the background check[1] then you don't have to accept them into the Community;
• If they violate rules of the community when they are already in the Community and under the agreement, you can require they leave;
• You can pre-qualify the person as a care provider, i.e. required a letter or similar proof from a doctor or someone, saying the tenant needs someone 24/7;
• If they can't provide that proof, then you don't have to allow them into the Community as a care provider (although I can't imagine it would be very hard to obtain such proof);
• According to the Fair Housing Counsel, you are to give the tenant a choice (assuming the person qualifies under the background check), i.e. they can put the person on an Occupancy Agreement or go onto a Rental Agreement. You can't automatically say, "OK, you must go on an Occupancy Agreement." [Caveat: I do not agree with this position, and do not endorse it. The consequences of putting a caregiver on a rental agreement is that you have an much stricter protocol when they violate the rules or laws - e.g. written notice and opportunity to cure, etc. I believe that caregivers and others who are there on a temporary arrangement should remain on the Temporary Occupancy Agreement. This is exactly what the agreement was designed to do. Both Rental Agreements and Temporary Occupancy Agreements only permit termination "for cause" so this is not a situation the landlord can abuse without consequences.]

If you did not put the caregiver on a Temporary Occupancy Agreement means that the caregiver is merely a "guest" of the tenant, and if the guest violates the rules, you have to send a 30-day notice to the tenant; if the rules continue to be violation, your only option is to terminate the tenant's tenancy, and the caregiver is out too. But, this is not what you want to do.

I suggest that you consider having the caregiver sign a Temporary Occupancy Agreement. Of course, she could refuse, but it's worth a try. I have been successful doing so in the past.

If that does not work, you may consider giving the proper termination notice[2] and then filing for eviction against the tenant and "all others", i.e. the caregiver. Then when the matter gets to court, inform the court that you don't want to evict the tenant, only the caregiver. (I have had a judge agree to do so in the past.) You could then either ask the judge to evict the caregiver, or through the mediation that occurs in these proceedings, provide that the caregiver can stay, but only if she signs the Temporary Occupancy Agreement.

By the way, if the tenant has dementia, something needs to be done through the local social service agency, since it does not sound as if he can take care of himself along. Good luck!

[1] Remember, you cannot require financial capacity if they are to be an occupant, but you can if they are to be a tenant.

[2] I strongly recommend have your attorney review the 30-day notice you previously gave before sending out a repeat violation notice. This situation is too important to get into court and have the case thrown out for a defective notice.

Answer: Here is a quick primer on ORS 90.727, the hazard tree statute, which was enacted in the 2013 Legislative Session:

Oregon Law.

1. Definitions.

• "DBH" means the diameter at breast height, which is measured as the width of a standing tree at four and one-half feet above the ground on the uphill side.

• "Hazard tree" means a tree that:
  • Is located on a rented space in a manufactured dwelling park;
  • Measures at least eight inches DBH; and
  • Is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future.

1. Habitability. A rented space is considered uninhabitable if the landlord does not maintain a hazard tree required by the 2013 Act.

1. Resident Duties re Trees Located on Space. A resident shall maintain and water trees, including cleanup and removal of fallen branches and leaves, on the rented space for a manufactured dwelling except for hazard trees.

• "Maintaining a tree" means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future.
• "Removing a tree" includes:
  • Felling and removing the tree; and
  • Grinding or removing the stump of the tree.

4. Landlord Duties re Hazard Trees.

• Landlord shall maintain a hazard tree that was not planted by the current resident if the landlord knows or should know that the tree is a hazard tree;
• Landlord may maintain a tree on the rented space to prevent the tree from becoming a hazard tree;
  • Must provide residents with reasonable written notice and reasonable opportunity to maintain the tree themselves.
• Landlord has discretion to decide whether the appropriate maintenance of a hazard tree is removal or trimming.
• Landlord is not responsible for:
  • Maintaining a tree that is not a hazard tree; or
  • Maintaining any tree for aesthetic purposes.
• A landlord must comply with the access provisions of ORS 90.725 before entering a resident's space to inspect or maintain a tree. [Generally, 24-hour notice. - PCQ]
• Subject to the preceding, a resident is responsible for maintaining the non-hazard trees on the resident's space at the resident's expense.
  • The resident may retain an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture to inspect a tree on the resident's space at the resident's expense;
  • If the arborist determines that the tree is a hazard, the resident may:
    • Require the landlord to maintain the tree as a hazard tree; or
    • Maintain the tree at the resident's expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist's report.

1. Tree Obstructing Removal of Home From Space. If a manufactured home cannot be removed from a space without first removing or trimming a tree on the space, the owner of the home may remove or trim the tree at the owner's expense, after giving reasonable written notice to the landlord, for the purpose of removing the home.

1. Use of Landscape Professional. The landlord or resident that is responsible for maintaining a tree must engage a landscape construction professional with a valid landscape license issued pursuant to ORS 671.560 to maintain any tree with a DBH of eight inches or more.

1. Access to Resident's Space [ORS 90.725].

• An "emergency" includes but is not limited to:
  • A repair problem that, unless remedied immediately, is likely to cause serious physical harm or damage to individuals or property;
  • The presence of a hazard tree on a rented space in a manufactured dwelling park.
• An "unreasonable time" refers to a time of day, day of the week or particular time that conflicts with the resident's reasonable and specific plans to use the space.
• "Yard maintenance, equipment servicing or grounds keeping" includes, but is not limited to, servicing individual septic tank systems or water pumps, weeding, mowing grass and pruning trees and shrubs.
• A landlord or a landlord's agent may enter onto a rented space to:
  • Inspect or maintain trees;
  • A landlord or the landlord's agent may enter a rented space solely to inspect a tree despite a denial of consent by the resident if the landlord or the landlord's agent has given at least 24 hours' actual notice of the intent to enter to inspect the tree and the entry occurs at a reasonable time.
  • If a landlord has a report from an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture that a tree on the rented space is a hazard tree that must be maintained by the landlord under this Act, the landlord is not liable for any damage or injury as a result of the hazard tree if the landlord is unable to gain entry after making a good faith effort to do so.
• If the resident 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 accordance with the Oregon eviction statutes. In addition, the landlord may recover actual damages.

1. Statement of Policy. It shall include the facility policy regarding the planting of trees on the resident's rented space. [See ORS 90.510]

Discussion. It is not clear to me whether your arborist knows what a "hazard tree" is under ORS 90. 727. Cutting the roots may make the tree more dangerous, but under the statutory definition, to be a "hazard tree" it must measure at least eight inches in diameter at breast height ("DBH")[1]. If it does, then you have the primary responsibility. If it does not then your rules would appear to apply.

However, even though the tree is not of sufficient size to be a hazard tree under the statute, I think the discussion merits a closer look. Assuming it was in existence at the time the resident rented the space, what the rule seems to say is that even though the landlord owns the ground and the tree, it becomes the tenant's responsibility once leased. As to small trees and normal vegetation, I can understand this rule. But the larger the tree, the more the argument becomes one of "cost shifting" i.e. requiring a resident to undertake possibly expensive measures (e.g. removing the tree) for the benefit of the landlord's property. This issue, in fact, was the rationale behind the hazard tree legislation.

Oregon law provides that park landlord have certain habitability obligations to residents. ORS 90.730(3)(g) provides:

Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord's duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy; (Italics mine.)

Although the statute does not refer to driveways and other amenities on the space, it does refer to the "dwelling", which includes the skirting. Does the tree root make it "unsafe". Probably not, if safety refers just to personal safety and not safety of the property.

However, ORS 90.135 (Unconscionability) provides that a resident may argue that shifting the responsibility for maintenance of landlord-owned property - in this case - a non-hazard tree not planted by the resident that is causing damage to residents' property, is "unconscionable". The statute provides:

If the court, as a matter of law, finds: (a) A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result; ***

Conclusion. I am not saying management is, per se' responsible. But what I am saying is that this is a risk that is better shouldered by a landlord, than a tenant, especially here, where the tree existed before the tenancy, and it ultimately belongs to the landlord.

Note, this may be an insurance issue. Can the residents file a claim with their carriers for the tree damage? This depends on their coverage. In the final analysis, the tree should be removed, since it will continue to damage the tenants' property. At some point they could file a claim against you for the cost of that damage. Why not remove the tree now and avoid any further issues?

[1] Technically, it is measured at four and one-half feet above the ground on the uphill side.

1. Make sure that the rental agreement really applies to your situation.  The MHCO rental agreement comes in two flavors: (a) The month-to-month (or “periodic”) rental agreement, and (b) the lease (or fixed term) agreement.  The difference is that the month-to-month agreement runs for the number of days in the current month.  In the absence of termination by landlord or tenant, the periodic tenancy just “rolls over” month to month.  Regardless of which agreement is used, landlords renting or leasing spaces to residents in mobile home parks may not terminate them without cause.  However, a lease for at least two years carries a distinct advantage in that the park documents, i.e. the lease agreement and the park rules, may be automatically updated at the end of each lease term.  While there are certain limitations on the landlord’s right to impose new park documents on the resident, it is clearly much easier to do under a lease than a monthly rental agreement.[2]  Also, landlords using a fixed terms lease agreement must expressly incorporate any rent increase provisions into the written agreement.  The rent increase statute, ORS 90.600, applies only to periodic (e.g. month-to-month) tenancies and not fixed term tenancies.  If the home located upon the space is a recreational vehicle rather than a manufactured home, landlords should not use the standard mobile home space rental agreement.  The reason is that the mobile home park section of the landlord-tenant law does not apply to recreational vehicles.[3]  When renting space for a recreational vehicle, landlords should use an appropriate MHCO RV rental form.

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

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

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

1. Landlords should be sure to fully understand their rights and responsibilities given under their rental agreement form.  Not knowing your rights can result in not enforcing violations, which can lead to a waiver of those rights.[4]

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

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

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

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

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

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

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

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

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

[4] See, ORS 90.415.

[5] ORS 90.610(2).

1. Installation of the Home. Both the home and any accessory buildings, such as sheds, and other structures, such as fences and decks, must be installed in compliance with all applicable laws, such as local ordinances and state building codes.
2. Disposing of Debris. All ashes, garbage, rubbish and other waste must be disposed of in a clean, safe and legal manner. With regard to needles, syringes and other infectious waste, the tenant may not dispose of these items by placing them in garbage receptacles or in any other place or manner except as authorized by state and local governmental agencies.
3. Conduct. Both the tenant and other persons in the home or on the space must behave in compliance with any laws or ordinances that relate to the tenant's behavior as a tenant.
4. Use of the Space and Common Areas. The tenant may not misuse or unreasonably use the space or common areas, taking into consideration the purposes for which they were designed and intended.
5. Debris. The tenant must keep the rented space in every part free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin as the condition of the rented space permits and to the extent that the tenant is responsible for causing the problem. The tenant must reasonably cooperate in assisting the landlord in any reasonable effort to remedy the problem. For example, if the space becomes infested with vermin due to the unkempt nature of the space, the tenant must do those things necessary to accommodate the landlord's extermination efforts.
6. Hazards of Fire. The home and the rented space must be kept safe from the hazards of fire. This means that any conduct or conditions occurring inside or outside of the home must be corrected by the tenant if it poses a fire hazard.
7. Smoke Alarms. The tenant is required to install and maintain a smoke alarm approved under applicable law.
8. Storm Water Drains. The tenant is required to install and maintain storm water drains on the roof of the home and connect the drains to the drainage system, if any.
9. Use of Systems. The tenant is required to use all electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems.
10. Destruction of Property. The tenant may not deliberately or negligently destroy, deface, damage, impair or remove any community property, other than the tenant's own home - nor may he or she knowingly permit any other person to do so.
11. Landscape Maintenance. Unless the rules or rental agreement provide otherwise, tenants are required to maintain, water and mow or prune any trees, shrubbery or grass on the rented space.
12. Peaceful Enjoyment. The tenant is required to behave, and require his or her guests to behave in a manner that does not disturb the peaceful enjoyment of the premises by neighbors. This is an all-too-frequently overlooked provision of the law. Many times a tenant's offending conduct, while not specifically prohibited in the park documents, is nevertheless bothering to other tenants. Landlords would be well-advised to remember this provision of ORS 90.740 in those difficult cases in which the activities, such as voyeurism or stalking, cause undue concern to the neighbors.

What happens if the tenant violates any of these statutory provisions? Is there a remedy? Assuming that the tenant will not comply with the landlord's requests for voluntary compliance, and there are no other reasonable alternatives, enforcement action is available in the same manner as a violation of the rental agreement or rules, i.e. issuance of a 30-day notice of termination. Under ORS 90.630, this means that the landlord must issue a written notice to the tenant advising that the tenancy will terminate in 30 days if the violation is not cured. The law provides that a second violation occurring within six months of the date of the preceding 30-day notice will entitle the landlord to issue a written non-curable notice terminating the tenancy in 20 days. As with all such notices, members are advised to use the MHCO forms, making sure that they are complete in all respects before delivering or mailing them to the tenant.

Answer:  In a word “Yes”. Today, the rule of thumb should be that subject to certain exceptions (listed below), you should not summarily reject applicants solely because of prior convictions.  I have written and spoken on this issue during 2016. 

On April 4, 2016, the U.S Department of Housing and Urban Development (“HUD”) issued its “Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions” (hereinafter, the “Memo”). The full text of the 10-page Memo can be found here. Not surprisingly, it follows the June 25, 2015 ruling by the U. S. Supreme Court, in the Texas Dept. of Housing vs. Inclusive Communities case, which upheld the much-debated concept of “disparate impact” under the Fair Housing Act, as amended (the “Act”). 

Disparate impact holds that certain practices in employment, housing, etc., may be considered discriminatory under the Act, if they have a disproportionately "adverse impact" on certain members of a protected class, i.e. those falling into the following groups: Race, color, religion, sex, disability, familial status or national origin.[1]  The simplest explanation of how disparate impact works is by the following example from the Memo:

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

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

Although, ironically, the Memo on deals with cases of disparate impact affecting members of “protect classes”.[2]  However, for purposes of this discussion, it is well to apply these guidelines across the board, regardless of protected class. Otherwise, there is the possibility, perhaps remote, that a landlord could be accused of reverse discrimination, for applying one set of criteria to members of protected class, and another set to members outside the class. Crazy huh?

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

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

1. Ultimately, landlords should plan on making adjustments in their rules and application process.  

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

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

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

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

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

1. How long ago was the conviction? (A single conviction over 6-7 years old, in most cases, should probably not be used as the basis for a denial, excluding registered sex offenders, or those convicted of violent crimes).

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

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

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

1. Note that according to the Memo, a refusal to rent to an applicant who has a conviction for one or more drug crimes involving the manufacture or distribution (not mere possession) of a federally defined controlled substance is permissible and not subject to a disparate impact claim. In other words, a landlord or manager may legally base the refusal to rent based upon a conviction for manufacture or distribution, since it is not a violation of the Act, based upon disparate impact.[3]

So this is one of those exceptions in which you may automatically decline an applicant. Others are, in my opinion, those convicted of sex crimes and pedophilia, regardless of how far in the past. Also, crimes of violence, e.g. murder, rape, aggravated assault, etc. The analysis is fairly straightforward: If the applicant’s prior conviction is one that, if he or she became a resident, it could foreseeably result in danger to the health, safety and well-being of other park residents, or their guests and invitees, a rejection, without the above analysis is in order. Some Fair Housing advocates may disagree, but my opinion is based upon a choice of evils, i.e. choosing between a threatened Fair Housing violation, balanced against the risk of a resident or their guests or invitees being injured or killed, because  you ignored their violent criminal history, and permitted them entry to the park 

Conclusion. So, based upon the facts you described above, this applicant had a conviction of two non-violent crimes (presumably occurring at the same time, resulting in companion charges).  They were eight years ago. Accordingly, it is important to find out what the applicant had been doing since being released from jail.

Lastly, as pointed out above, I suggest that you reserve the criminal background analysis for applicants who have already passed all of the park’s other screening criteria.  In other words, if you don’t have to use criminal background as a basis for rejection – i.e. there are other valid criteria for rejection – you do not have to rely upon the applicant’s criminal background for a rejection.

Please review MHCO Form 1A. It includes the criminal background analysis discussed above.

[1] Note, the State of Oregon and some of its local jurisdictions have additional classes, including sexual orientation. See, http://www.fhco.org/discrimination-in-oregon/protected-classes .

[2] The seven protected classes under the Federal Fair Housing Act are: Race; Color; Religion; Sex; National Origin; Disability (added in 1988); Familial Status (having children under 18 in a household, including pregnant women) (added in 1988). There may be additional protected classes added by state and local laws.

[3] Per the Memo: “Section 807(b)(4) of the Fair Housing Act provides that the Act does not prohibit ‘conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’”

Among other things, the ADA requires public accommodations to make new public use facilities fully accessible, to remove physical barriers for older ones (built before January 23, 1993) to the extent "readily achievable," and to make any "alterations" to existing public use facilities accessible to the "maximum extent feasible."

Many park operators mistakenly believe that none of the park is a public accommodation. Many also incorrectly assume that they are "exempt" from the ADA's requirement because their leasing office and parking lot facilities are very old. As a result, they fail to make the leasing office and parking lot accessible, and make themselves vulnerable to ADA complaints or lawsuits.

An existing public use facility that was built before January 23, 1993 must remove physical barriers to entering and using the facility, such that it can be navigated by a disabled person, when "readily achievable." Whether changes are "readily achievable" will be assessed on a case-by-case basis, in light of the resources available to a public accommodation. Thus, a park owned by a large company with substantial resources will clearly be expected to have removed most physical barriers to entry into the leasing office and to use of the parking lot (and any other areas of the park to which the public is invited). A small mom and pop mobile home park may be expected to at least have taken all of the relatively inexpensive steps to make the leasing office and parking lot (and any other areas of the park to which the public is invited) accessible.

Examples of "readily achievable" barrier removal items include (but are not limited to): installing ramps; making curb cuts at sidewalks and entrances; rearranging tables, chairs, vending machines, etc. so that disabled persons can access the public area; widening doorways; and installing grab bars in toilet stalls if a public bathroom is offered.

When an existing, older public accommodation decides to start working towards barrier removal, it should keep four priorities in mind. Most importantly, the first priority should be to make changes to ensure that disabled persons will be able to get "in the front door." For example, a mobile home park would need to remove stairs that a person must navigate to enter the leasing office so that someone with a mobility impairment could access it. The second priority should be to provide access to areas where goods and services are available. The third priority should be to provide access to restroom facilities. And, finally, the fourth priority is to take any "other measures" necessary to provide access to the public accommodations' goods, services, and advantages.

Public accommodations should keep in mind that when working on barrier removal, they must comply with the alterations requirements of the ADA's Accessibility Guidelines. Those Guidelines set forth specific ways that curb cuts, parking areas, grab bars, etc. must be installed. If it is not "readily achievable" to fully comply with the Guidelines, a public accommodation must take steps that are "readily achievable." For example, if a doorway cannot be widened quite enough to comply with the Guidelines, the public accommodation would still be required widen the doorway as much as possible.

If a public accommodation builds a new public use facility, that facility must be made readily accessible to and usable by persons with disabilities. The new pubic use facility must follow the ADA Accessibility Guidelines' architectural standards. Similarly, if a public accommodation makes "alterations" to its pubic use facilities, those alterations must be accessible to the "maximum extent feasible." For a mobile home park, if the park remodels its leasing office, the leasing office would need to comply with the ADA Accessibility Guidelines as much as possible. If undertaking a remodeling project in any part of the mobile home park that is open to use by the general public, the park should consult with a contractor well-versed in ADA compliance.

Again, RV parks with short-term (daily and weekly) rentals are particularly affected by these laws. Generally, such an RV park will probably be considered a public accommodation as a whole. Therefore, RV parks with short-term rentals should consult with contractors well-versed in ADA compliance to determine what can be done to make the park ADA compliant. "Readily achievable" steps to remove architectural barriers will need to be taken. Many RV parks are aware that several groups have been filing lawsuits targeting RV parks that do not comply with the ADA. Some of these lawsuits have focused on parking lots, but others have focused on the facilities as a whole-for example, whether the park has a pool lift. Some of the groups filing such lawsuits have "testers" who will make a phone call to the park and ask whoever answers the phone questions about whether the facility has certain ADA accessible features. It may be wise to simply invite those individuals to take a look at the park rather than answering any specific questions about accessible features. It is unwise to say that you do not have a pool lift or that your bathrooms are not accessible.

A final note of importance for both mobile home and RV parks: the pool. A pool may or may not be a public use facility depending upon who has access to and use of the pool. In a mobile home park or an RV park only doing monthly and longer leases, if the pool is only open to park residents, their visitors and guests, it is probably not a public use facility. If the park, however, holds regular parties or events at the pool to which the public is invited, it probably will be treated as a public use facility and the pool is required to have a permanent pool lift or pool lifts meeting accessibility criteria. RV parks with daily and weekly rentals are required to have a pool lift.

To enforce the ADA, private parties may file lawsuits to obtain court orders to stop discrimination. While monetary damages are not available in such lawsuits, reasonable attorneys' fees may be awarded to the plaintiff if he or she prevails. Additionally, individuals may file complaints with local enforcing agencies, like the Arizona Attorney General's Office (or in Oregon, the Oregon Attorney General's Office). They will investigate complaints and, if they determine that a park violated the ADA, they are empowered to file suit. In lawsuits brought by the AG's Office, monetary damages and substantial civil penalties may be awarded to the prevailing party.

Melissa A. Parham

Williams, Zinman & Parham P.C.

7701 E. Indian School Road, Suite J

Scottsdale, AZ 85251

(480) 994-4732 (phone)

(480) 946-1211 (fax)

Melissa@wzplegal.com

http://wzplegal.com

Answer: The Oregon landlord-tenant law does not "require" that a landlord accept partial payments. To the contrary, it provides that it is a "tenant's duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement... ."

A landlord may refuse to accept the tender of partial rent of rent that is not paid on time. However, if the landlord agrees to accept a partial payment of rent he/she may do so, although it should be clearly described in a well-drafted written agreement.

Such partial payments do not constitute a waiver of the right to later demand prompt performance in the future. Nor do they prevent the landlord from terminating the tenancy if the balance of the rent is not paid as agreed.

However, there are some pitfalls that the landlord must be aware of: Acceptance of a partial payment waives the right of termination if accepted after issuance of a 72-hour or 144-hour notice of termination.

When presented with a partial payment issue, landlords are wise to closely review ORS 90.417. Lastly, consistent application is important - i.e. if the landlord has permitted partial payments by some residents, he/she would be hard-pressed to disallow others the right to do so without good reason.

Here are a summary of how ORS 90.417 applies to this case:

• A tenant's duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement.
• A landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely.
• A landlord may accept a partial payment of rent. Doing so does not constitute a waiver, if properly documented. Here is what the landlord must do to avoid waiver:
  • The partial payment must have been made before the landlord issued a 72-hour or 144-hour notice for nonpayment.
  • The landlord must enter into a written agreement with the tenant stating that the acceptance does not constitute waiver.
  • The agreement should provide that the landlord may terminate the rental agreement and take possession as provided in the Oregon FED laws if the tenant fails to pay the balance of the rent by a time certain.
  • The tenant must agree in writing to pay the balance by a date/time certain.
• If the balance is not paid according to this written agreement, the landlord may serve a 72-hour or 144-hour nonpayment of rent notice - but it must be served no earlier than would have been permitted under the rental agreement and the law, had no rent been accepted.[1]
• Notwithstanding a landlord's acceptance of a partial payment of rent, the tenant continues to owe the landlord the unpaid balance of the rent. In other words, acceptance of partial rent does not eliminate the duty to pay the balance.

[1] This somewhat confusing statement is meant to avoid a situation where the agreement for partial payment called for payment of the balance before rent would have otherwise been due. For example, if rent is due on the first and late on the 7th, then the earliest a 72-hour or 144-hour notice could be served would be the 8th day of the month. Thus the agreement for payment of the balance of the rent may not require that the tenant pay it before the 7th day of the month.