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Answer. Subject to the caveat that I am not a First Amendment lawyer, here are my thoughts:

The First Amendment to the U.S. Constitution provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Section 8 of the Oregon Constitution provides:

No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.  (Emphasis added.)

How these two laws have been legally interpreted, and the scope of each one vis–à–vis the other, is beyond my skill-set.

First, there is only one statute in Oregon’s landlord-tenant law that addresses this issue, and it is broadly crafted to permit expression:

90.755 Right to speak on political issues; limitations; placement of political signs. 

(1) No provision in any bylaw, rental agreement, regulation or rule may infringe upon the right of a person who rents a space for a manufactured dwelling or floating home to invite public officers, candidates for public office or officers or representatives of a tenant organization to appear and speak upon matters of public interest in the common areas or recreational areas of the facility at reasonable times and in a reasonable manner in an open public meeting. The landlord of a facility, however, may enforce reasonable rules and regulations relating to the time, place and scheduling of the speakers that will protect the interests of the majority of the homeowners.

      (2) The landlord shall allow the tenant to place political signs on or in a manufactured dwelling or floating home owned by the tenant or the space rented by the tenant. The size of the signs and the length of time for which the signs may be displayed are subject to the reasonable rules of the landlord. [Formerly 91.925; 1991 c.844 §18; 1995 c.559 §40; 2009 c.816 §17] (Emphasis added.)

So as to political signs, it appears that pro- and anti-Trump signs are clearly protected. What about pro-life signs, which could be viewed as a political statement? Same question for gay rights. Confederate flags might be regarded as political, but I believe in this day and age of hypersensitivity, it has become viewed less as emblematic of southern heritage, and more as having racial undertones. In short, community management might have an easier chance of prohibiting the flag than a sign.

What is interesting in Oregon’s law is that the rights of expression, speech, and press, are modified by the clause “but every person shall be responsible for the abuse of this right.”  Again, I do not know how this law has been judicially interpreted, but clearly, it suggests that the freedom is balanced against an abuse of the right.

In this vein, ORS 90.740(4)(j) provides that one of a resident’s legal duties in a community is to:

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.

So, my take, is the following:

• Each situation must be viewed on a case-by-case basis, depending not only upon the signage, but the demographics of the community itself. In other words, certain signs in certain communities may not be viewed as provocative or inflammatory, and therefore be permissible. 
• However, here’s the rub: All it takes is one person with a provocative sign that offends an entire community, to enlist the aid of the ACLU, and you may quickly confront the reality of the legal cost for protecting the “peaceful enjoyment” of the rest of the community.[1]

So in the final analysis, my belief is that the “peaceful enjoyment” language of ORS 90.740(4)(j), protecting the community’s residents as a whole, coupled with Oregon’s constitutional protection against abuse of the right of free speech, together provide a legitimate basis for prohibiting non-political signage that could be deemed offensive to the rest of the community. However, such proscriptions should only be broadly spelled out in management’s rules, rather than expressly deeming certain topics permissible, and others impermissible. For example:

“Residents shall not post on their spaces or homes, signs, emblems, flags, slogans, or similar expressions, which, by their nature, could be viewed as offensive or inflammatory to other residents, and thereby interfering with their peaceful enjoyment of the Community.”

However, if the signage relates to political candidates, campaigns, politicians, and legislation, etc., ORS 90.755 appears to give residents broad rights, subject only to the size of the signage and length of time it may appear.  Lastly, I would believe that the use of profane or vulgar images or text in political signs may be reasonably prohibited by management.

[1] This is why community management should carry sizeable liability insurance.

Answer: Bad news on both fronts. Let me answer your second question first. You may NOT share in a real estate commission unless you have your own Oregon real estate license. This prohibition against commission sharing even applies between real estate agents and the homeowner they represent. Here is the applicable Oregon Law:

ORS 696.290 [Sharing compensation with or paying finders fee to unlicensed person prohibited]

(1)A real estate licensee may not offer, promise, allow, give, pay or rebate, directly or indirectly, any part or share of the licensees compensation arising or accruing from any real estate transaction or pay a finders fee to any person who is not a real estate licensee licensed under ORS 696.022 (Licensing system for real estate brokers and property managers). However, a real estate broker or principal real estate broker may pay a finders fee or a share of the licensees compensation on a cooperative sale when the payment is made to a licensed real estate broker in another state or country, provided that the state or country in which that broker is licensed has a law permitting real estate brokers to cooperate with real estate brokers or principal real estate brokers in this state and that such nonresident real estate broker does not conduct in this state any acts constituting professional real estate activity and for which compensation is paid. If a country does not license real estate brokers, the payee must be a citizen or resident of the country and represent that the payee is in the business of real estate brokerage in the other country. A real estate broker associated with a principal real estate broker may not accept compensation from any person other than the principal real estate broker with whom the real estate broker is associated at the time. A principal real estate broker may not make payment to the real estate broker of another principal real estate broker except through the principal real estate broker with whom the real estate broker is associated. Nothing in this section prevents payment of compensation earned by a real estate broker or principal real estate broker while licensed, because of change of affiliation or inactivation of the brokers license.

(2)Nothing in subsection (1) of this section prohibits a real estate licensee who has a written property management agreement with the owner of a residential building or facility from authorizing the payment of a referral fee, rent credit or other compensation to an existing tenant of the owner or licensee, or a former tenant if the former tenant resided in the building or facility within the previous six months, as compensation for referring new tenants to the licensee.

(3)(a) Nothing in subsection (1) of this section prevents an Oregon real estate broker or principal real estate broker from sharing compensation on a cooperative nonresidential real estate transaction with a person who holds an active real estate license in another state or country, provided:

(A)Before the out-of-state real estate licensee performs any act in this state that constitutes professional real estate activity, the licensee and the cooperating Oregon real estate broker or principal real estate broker agree in writing that the acts constituting professional real estate activity conducted in this state will be under the supervision and control of the cooperating Oregon broker and will comply with all applicable Oregon laws;

(B)The cooperating Oregon real estate broker or principal real estate broker accompanies the out-of-state real estate licensee and the client during any property showings or negotiations conducted in this state; and

(C)All property showings and negotiations regarding nonresidential real estate located in this state are conducted under the supervision and control of the cooperating Oregon real estate broker or principal real estate broker.

(b) As used in this subsection, nonresidential real estate means real property that is improved or available for improvement by commercial structures or five or more residential dwelling units.

As for requiring that residents use your preferred agent, that too is a No-No. Here is that statute [I've underscored the applicable provision in subsection (1).] The term "services" can clearly be applied to real estate brokerage services, and as such, I cannot recommend that you impose that condition on residents when they want to sell their home.

90.525 [Unreasonable conditions of rental or occupancy prohibited.]

(1) No landlord shall impose conditions of rental or occupancy which unreasonably restrict the tenant or prospective tenant in choosing a fuel supplier, furnishings, goods, services or accessories.

(2) No landlord of a facility shall require the prospective tenant to purchase a manufactured dwelling or floating home from a particular dealer or one of a group of dealers.

(3) No landlord renting a space for a manufactured dwelling or floating home shall give preference to a prospective tenant who purchased a manufactured dwelling or floating home from a particular dealer.

(4) No manufactured dwelling or floating home dealer shall require, as a condition of sale, a purchaser to rent a space for a manufactured dwelling or floating home in a particular facility or one of a group of facilities. [Formerly 91.895; 1991 c.844 _7]

Answer. ORS 90.730(3)(c) provides:

A landlord who rents a space for a manufactured dwelling or floating home shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. The landlord does not have a duty to maintain a dwelling or home. A landlord's habitability duty under this section includes only the matters described in subsections (3) to (6) of this section.

(3)For purposes of this section, a rented space is considered unhabitable if it substantially lacks:

(c)A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord; (Emphasis added.)

In relevant part, ORS 90.365 provides:

(1) If contrary to the rental agreement or ORS 90.320 (Landlord to maintain premises in habitable condition) or 90.730 (Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition) the landlord intentionally or negligently fails to supply any essential service, the tenant may give written notice to the landlord specifying the breach and that the tenant may seek substitute services, diminution in rent damages or substitute housing. After allowing the landlord a reasonable time and reasonable access under the circumstances to supply the essential service, the tenant may:

(a)Procure reasonable amounts of the essential service during the period of the landlord's noncompliance and deduct their actual and reasonable cost from the rent;

(b)Recover damages based upon the diminution in the fair rental value of the dwelling unit; or

(c)If the failure to supply an essential service makes the dwelling unit unsafe or unfit to occupy, procure substitute housing during the period of the landlord's noncompliance, in which case the tenant is excused from paying rent for the period of the landlord's noncompliance. In addition, the tenant may recover as damages from the landlord the actual and reasonable cost or fair and reasonable value of comparable substitute housing in excess of the rent for the dwelling unit. For purposes of this paragraph, substitute housing is comparable if it is of a quality that is similar to or less than the quality of the dwelling unit with regard to basic elements including cooking and refrigeration services and, if warranted, upon consideration of factors such as location in the same area as the dwelling unit, the availability of substitute housing in the area and the expense relative to the range of choices for substitute housing in the area. A tenant may choose substitute housing of relatively greater quality, but the tenant's damages shall be limited to the cost or value of comparable substitute housing.

(2)If contrary to the rental agreement or ORS 90.320 (Landlord to maintain premises in habitable condition) or 90.730 (Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition) the landlord fails to supply any essential service, the lack of which poses an imminent and serious threat to the tenant's health, safety or property, the tenant may give written notice to the landlord specifying the breach and that the rental agreement shall terminate in not less than 48 hours unless the breach is remedied within that period. If the landlord adequately remedies the breach before the end of the notice period, the rental agreement shall not terminate by reason of the breach. As used in this subsection, "imminent and serious threat to the tenant's health, safety or property" shall not include the presence of radon, asbestos or lead-based paint or the future risk of flooding or seismic hazard, as defined by ORS 455.447 (Regulation of certain structures vulnerable to earthquakes and tsunamis).

(3) For purposes of subsection (1) of this section, a landlord shall not be considered to be intentionally or negligently failing to supply an essential service if:

(a)The landlord substantially supplies the essential service; or

(b)The landlord is making a reasonable and good faith effort to supply the essential service and the failure is due to conditions beyond the landlord's control. (Emphasis added.)

So based upon my reading of the italicized sections, my take is that if the issue is truly an act of God - i.e. it was truly beyond your control - then the failure of the system for those days is not something for which the resident has a remedy against you. Of course, "the devil's in the details", if you'll pardon the pun. You have not indicated what cause all of the pipes to burst at one time. Was it earth movement, a systemic failure that you could not have foreseen?

As you can see from these sections, residents do have significant rights when loss of habitability issues occur. So before butting heads with the resident, make sure you're on sound footing. Caveat: I have not researched the Oregon case law recently to see how these statutes have been interpreted by Oregon's appellate courts.

A Cautionary Tale. But here is the risk you assume if you simply issue a 72-hour notice and file for eviction:

In a nonpayment of rent eviction, a good tenant's attorney can frequently retain possession for his/her client, even though they clearly failed to pay the rent when due. All it takes is a little familiarity with that labyrinthine set of statutes in Oregon's Residential Landlord Tenant Act, or "RLTA."

However, oftentimes it is not until the first appearance following the filing of the eviction that the landlord discovers that the tenant has gone to an attorney and is now raising various counterclaims. In your case, it was be for the failure to provide an essential service.

Assuming that the tenant has the money to pay the entire rent due, this is a battle that you are almost certain to lose. The reason is found in the rent-tender statute, ORS 90.370 (Tenant Counterclaims). Essentially, this statute, and several cases that have construed it, permit the tenant to tender the past-due rent into Court, even though it was not paid during the 72-hour period set forth in your notice. At the conclusion of the case, if the Court finds that the amount tendered into Court covers the amount found to be due, the tenant automatically retains possession. The tenant is permitted to hedge their bet.

Example: Landlord files an eviction against Tenant based upon the failure to pay monthly rent of $400. Tenant files counterclaims alleging habitability violations, and claims that because of the deficiencies, the market rent for the premises is only $200 per month. Tenant has had possession for seven months (including the month for which rent was not paid) and asks for the return of $200 for each of the prior six months. Tenant tenders $400 into Court prior to the commencement of trial. Assuming that the claims are in good faith, here are the various scenarios:

1. Worst Case for You: The Court finds in favor of the tenant, awarding him a judgment for $1,200 (6 months X $200) plus costs and attorney fees.

2. Best Case for You: Although the Court finds against tenant on his counterclaims, and therefor finds that the amount due to you is the full $400, since it has already been tendered into Court, the tenant is allowed to retain possession and may submit a request for recovery of his costs and attorney fees.

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

So, when should a landlord fight to evict a tenant for nonpayment of rent, where the tenant has made a tender into Court? Only in the following situations: (a) Where the landlord is confident that he/she can convince the Court that the counterclaims were filed in bad faith; or, (b) Where the rent tender is believed to be inadequate and the tenant's attorney does not know that the shortfall could be tendered into Court. In virtually every other situation, the odds of winning a contested nonpayment of rent eviction where there has been a rent tender are very rare.

Conclusion. I agree with you that it would be bad precedent to permit this situation to continue, as it could metastasize throughout the rest of the community of affected residents. I also agree that it would be unwise to accept partial rent, unless you could do so with a written agreement where the tenant acknowledges that you are not waiving the shortfall.

I suggest that you thoroughly vet the cause of the bursting pipes, so as to leave no doubt that a failure of maintenance was not the problem. Speak to one or more experts and try to get a written statement as to the cause. With that you might then try to reason with the tenant - if that's possible. Reasoning with a person who refuses to obtain legal advice is often difficult.

One possibility is to privately meet with the resident and see if some accommodation can be reached. If we're only talking about $90.00 (6X$15), perhaps he would agree to pay the full rent, and you could provide some ancillary park service of equivalent service for free. I'm sure this doesn't sound attractive, but if he sticks to his guns, the end game will likely not end well for you - unless you have thoroughly vetted the issue of responsibility and provided him with proof that this was an act of God.

There is another, slightly imaginative, but possibly effective, solution: Issue a 72-hour notice for each month he tenders partial rent that you reject (making sure you photo each check), and then on the third one, issue a non-curable 30-day notice under Oregon's three-strike law. (See, ORS 90.630(8)).

Answer. There is no such form. Perhaps there should be. But first, let's address some threshold issues, such as:

• Who owns the structure?
• Who has the duty to maintain it?
• What happens to it when the tenant vacates the space?
• Who would likely be held liable for injuries to persons/property using the structure?

If the structure was there when the resident first rented or leased the space, there isn'tmuch question but that the landlord "owns" it, if it remains there when the space is re-rented or re-leased. Although most rental/lease agreements and rules require the resident to "maintain" the space, in most instances, the text of these provision generally apply to landscaping-type activities. If the structure is expressly identified in the park documents, and allocates maintenance responsibility to the resident, then the issue is clearer. But it is my opinion that if the documents are silent about park-owned structures on the space, the duty to maintain, paint, etc., lies with the landlord. Why? Because the landlord drafted or selected the documents for the resident to sign, and accordingly, could have delegated the responsibility in whatever manner he/she saw fit. Having failed to do so, means that the agreement or rule will most likely be construed most strictly "against the drafter" - i.e. to the landlord.

Clearly, if the structure was on the space at the inception of the tenancy (therefor presumptively belonging to the landlord), when the resident departs, it would remain there. Similarly, if some liability occurred, it would fall on the landlord, unless it was from an event caused by the resident.

For example, say there is a storage shed located on the space at the start of the tenancy, and nothing is said in the park documents about maintenance responsibility. The resident uses the shed to store family items, including old photos and collectibles. Unbeknownst to the resident, the shed is not completely water resistant, and over the course of the winter, they are destroyed. Unless there is some evidence the resident knew about the leakage and did nothing to protect their belongings, this is likely a landlord liability.

Is this an instance in which the landlord could protect themselves by having a release of liability agreement saying that the resident assumes all responsibility for destruction or loss of any valuables stored in the shed? Possibly, but not absolutely. In other words, the more specific the agreement was, the better the chances are it would be enforced to the benefit of the landlord. But a simple statement saying that the resident assumes all responsibility for the contents stored in the shed, might not go far enough. Remember, absent the resident's duty to maintain the shed, if the landlord has the maintenance responsibility, management is arguably somewhat responsible for making sure that the shed is watertight - at least that's the argument the resident's attorney would make. So how can the landlord, who has the duty to maintain the shed, abdicate responsibility for not maintaining it in a secure manner?

Accordingly, to have a more enforceable release agreement, I submit that landlords should also have an agreement providing that: (a) landlord does not have a duty to maintain, inspect, or secure it; (b) landlord does not warrant or guarantee that the shed is waterproof, or free from mold and mildew; (c) before use, the resident should assure himself/herself that it is suitable for storage of the specific contents intended to be stored there; and (d) that the resident covenants and agrees to maintain the exterior and interior of the shed for the duration of the tenancy. Only then can you expect a full release and hold harmless clause to be effective, since by signing, the resident is now making an informed decision about the scope of responsibilities under the agreement going forward.

So the take-away here is that if you have not addressed these issues for park-owned structures in the lease, rental agreement and/or rules, you should do so upon turnover of the space. Until then, it would likely be difficult to shift responsibility onto a resident, when it was not expressly bargained for at the inception of the tenancy.

Similarly, even though a resident builds the structure, you may want to address these issues in a separate written agreement before the structure is built. In addition, you want to make sure that the construction of a tenant-built structure conforms to all applicable building codes and ordinances, including, where applicable, the taking out of one or more building permits. And if the resident hires a contractor, you will want to use MHCO Form No. 52.

And importantly, you will want to address whether the resident has a duty to remove it upon sale of the home. Alternatively, you can provide that the landlord reserves the right to make that decision if/when the resident who built it gives notice of intent to sell or remove the home. And if it stays, you'll want to have an agreement with the new resident, addressing the issues described above.

Lastly, if the structure is something built for children to play on, e.g. swing sets, ladders, slides, etc., I strongly recommend that you require the resident who built it, take it with them. Under no circumstances do you want to lease or rent space to another resident with this apparatus there. It creates too much liability for management, and even if it remained after a resident left, I would remove it before permitting possession by new residents with small children.

Answer: That is a good question. First, to be clear for our readers, a "security agreement" is any agreement that serves as "security" on the property. For example, a trust deed is recorded on real property, and secures the promissory note. If the note is not paid, the holder can turn to the security, and sell it to satisfy the unpaid indebtedness.

Since manufactured homes are not real property, the document is different, but the concept is the same. A Retail Installment Contract is defined in ORS 83.510(12). Its purpose is to retain a lien upon the manufactured home to secure a buyer's obligations under the contract. Form 2A informs the buyer that the seller/dealer is claiming a security interest in the home for the duration of the contract, and that in the event of default the seller/dealer will have certain remedies to foreclose and/or repossess the home. Upon a buyer's full payment and performance under the Retail Installment Contract, the seller/dealer is required to mail to the buyer good and sufficient instruments to indicate payment in full and to release all security rights in the home.

If the sale transaction is closed in escrow, there is nothing more for the seller to do to secure his/her security interest in the home, as escrow will submit the necessary documents to the Oregon Department of Business and Consumer Services.

However, if the seller/dealer does not close the transaction through escrow, they will have to perform the following steps themselves:

1. Submit to the Department of Consumer and Business Services (DCBS) an application for an ownership document on behalf of the purchaser.

1. The application must be on a DCBS-approved form, and include the following:
   1. The year, manufacturer's name, model if available, and identification number for the home;
   2. Any existing ownership document for the home or, if none, the homes certificate of origin or other document evidencing its ownership;
   3. The legal description or street address for site where the home is or will be placed;
   4. If the home is sited in a manufactured housing community, the name of the community;
   5. The name and mailing address of each person acquiring an interest in the home;
   6. The name and mailing address of each person acquiring a security interest in the home; and
   7. Any other information required by the DCBS by administrative rule.

1. If the seller/dealer is unable to comply with Sec. 2, above, within 25 business days of the sale/closing of the home, he/she must provide a notice of delay to the purchaser. The notice must contain:
   1. The reason for the delay;
   2. The anticipated extent of the delay; and
   3. A statement of the rights and remedies available to the purchaser if the delay becomes "unreasonably extended."[1]
2. Fail to comply with the above could result in the seller/dealer becoming subject to revocation or suspension of their license or being placed on probation by the DCBS pursuant to ORS 446.741.
3. If they fail to comply with Sec. 2, above within 90 days of the sale/closing, they could become subject to criminal penalties under ORS 446.746 (1)(h).
4. However, if the home buyer is not in compliance with the payment terms of their purchase or security agreement with you by the 20th calendar day after the sale/closing, the seller/dealer is not required to perform the steps in Sec. 2 until 25 calendar days after the home purchaser is in compliance with the payment terms. [Note: This does not excuse a seller/dealer from complying with Sec. 3, above, even though the purchaser is late on his/her payments.]

[1] Note: The statute does not define "unreasonably extended," nor does it identify any particular remedies you might suggest. If such a delay occurs, you should contact your own legal counsel, since you do not want to write such a letter to the purchaser identifying their "legal remedies" - that would be up to the purchaser's attorney.

Evictions.

Most evictions are either for failure to pay rent or violation of rules. An eviction (formally known as a "forcible entry and detainer" or "FED") is an expedited legal procedure designed to allow landlords to obtain possession of their property through the court system. Oregon does not require that landlords obtain an attorney in order to file an FED. The necessary summons and complaint can be obtained from the courthouse and they can be filed and served quickly. This has its advantages and disadvantages: It is good insofar as it keeps the cost of the process down, but it is bad if the owner or manager fails to strictly follow all of the legal procedures required by the statutes. Accordingly, for the inexperienced manager or new owner, it is strongly, recommended that guidance first be sought, either through the MHCO, from an experienced attorney, or by consulting with a knowledgeable community management company.

Since the FED process is designed to be a "summary" or quick proceeding, the law imposes upon those seeking its assistance, i.e. owners and managers, the duty to strictly comply with all of the requirements set out in the statutes. This means, for instance, that the written notice that must precede the filing of the complaint (e.g the 72-hour nonpayment of rent notice or the 30-day notice of termination for cause) must be properly filled out to the letter. Since the notice is required to be attached to the FED complaint, and thereby becomes a part of it, if it is defective in any respect, the Court can unilaterally dismiss it - thus forcing the landlord or manager to start all over again. It is for this reason that before actually filing the summons and complaint which starts the FED court process, the plaintiff should closely review the notice to make sure it complies with the law.

Leases & Rental Agreements.

As a result of MHCO's efforts in the recent Legislative Session, landlords will be able to use leases for two year terms or more. At the end of the term, the tenant must either agree to a new updated lease as well as rules and regulations. Briefly, the process is as follows: Not more than 60 days prior to the termination of the lease, the landlord must provide the tenant with a copy of the new proposed lease and rules. Thereafter, the tenant has 30 days within which to either agree to the new terms or to vacate and remove the home. If the tenant declines to sign and elects to vacate, he/she can try to re-sell the home in the park for up to 12 months, so long as storage fees are paid.

The one limitation on landlords - and not an unreasonable one - is that the new lease agreement or rules that the tenant may be asked to sign must be the substantially the same as those the landlord is currently offering others who are seeking to rent a space in the community.

One caveat for landlords: If they fail to offer the new rules and lease agreement to the tenant on or before 60 days prior to expiration of the current term, the lease turns into a month-to-month tenancy.

Thus, the use of leases under the new law will now permit landlords to unilaterally update their rental agreements and rules. We'll be talking about this in depth at the Annual Convention.

Day Care Facilities.

Frequently, community managers are confronted with tenants who seek to open day care businesses in their home. There are multiple issues involved here. First, is it a violation of the existing zoning laws to use the home for a commercial business? Secondly, will it impact the landlord's insurance rates? Lastly, what about increased traffic and risk of accidents? All of these issues militate against permitting tenants to open such enterprises.

Landlords should review their rules and regulations to make sure they have adequate limitations on day care businesses. If they do not, consideration should be given to updating the rules to make the appropriate amendments. However, for those landlords or managers whose rules do not address the issue, how is one to proceed? Oregon law provides that violation of the law constitutes a breach for which a curable 30-day notice of termination may be given. Accordingly, the landlord or manager should first check the zoning law. If it is a residential neighborhood, there may be zoning restrictions on such business enterprises. Also, even if there is not current restriction, there is nothing illegal about instituting a restriction of day care facilities immediately. Oregon law permits such rules, even if they make a material modification to the landlord-tenant relationship, so long as they are passed by the tenants in a legally adopted rule change (i.e. 51% or more do not object.)

Do employees know our management direction and is it consistently implemented? We all should have our structure to accomplish goals of our management direction. Mentioned in this article are suggestions that are critical to our businesses, service to our residents, retention of employees, and to stay out of court.

I'm sure you're already a dedicated successful business person. Even with the busy schedules we have today, is it worth your time and money to be an more effective park owner. These suggestions I will present are proven to work: in one park, for example, there have been only three management teams in the last thirty years, each staying ten years. A dedicated staff have stayed and performed very well for five to nineteen years. They have eighty five residents who have been living in the park for ten or more years with fifteen residents being at the park for twenty or more years. Survey results show resident satisfaction as "happy" and they would recommend the park to family and friends.

A good management team is the biggest factor to success of our businesses.

Many find that the use of a professional property management company is critical. It can be risky to operate your park without a full and complete knowledge of all current laws and trends. You must ask yourself if you have that knowledge or the time to do re-search necessary to effectively run your park.

Our business is far too complicated for us to know all aspects of a changing environment. Whether it is local politics, timely and correct response to personnel and resident issues, or help with business strategies, it is very complicated and costly to make un-informed decisions. It's difficult to be effective at all things at all times. (Keep in mind that your WMA local representative is an important source of information regarding local laws and regulations.)

Just as property managers have specialists; our businesses should have specialists within our parks with specific responsibilities. Without specific assignments no one will feel responsible for tasks.

As a reminder, the following suggestions may be helpful in managing your business.

"Park within a Park" Rental Homes

Today, many of us have come to rely upon park rentals to maintain profitability and cash flow. If this is the case for your business, someone in your organization must have your rental business as their first responsibility. Prospective renters have to be found and vetted, and decisions made based on the data collected. Do you want to be the collector of all this information? Probably not.

Knowing the reasons why people choose your park is also import-ant. It's good to be aware of the reasons people move in or out. What motivated them to select your park? Using a questionnaire to find out this information will help reveal trends that may help you to manage your rentals more effectively. How can you know your rental business if you don't have data to support decisions and the future for your rental business?

When selling or refinancing a park, buyers and lenders can make informed decisions if you are well documented. Financing can be difficult when rentals are big part of your revenue and expenses. It is a confidence builder for your loan representative and their loan committee if a solid case can be made that you are managing your rental business well.

Develop a "work-order" process, so renters can let you know if something needs to be repaired. Their satisfaction will keep turn-over low.

Know your Inventory

Knowing your inventory is a key factor in projecting your future rental business and cash needs. With up to date information, you will know what each home needs in order to be ready for rental.

Homes need to be safe and acceptable to be rented. If you have a few rentals, it is easy to know the specifics of each home. If you have fifty homes rented and ten needing work, organized and specific data is needed to know which home should be scheduled first for refurbishing.

Curb appeal is a first and lasting impression. People will form opinions about your business based on what they see first.

Consider a color pallet for homes to be painted. (I'm sure we have all seen resident or manager se-lections that are less attractive than we would like them to be.) Keeping a consistent color pallet across your park will have an aesthetically pleasing effect. If you do this, there will be no surprises when you visit your park.

Keep an Eye on Past Due Rents

Our life blood is collecting rents. Monitoring the past due amounts, identifying chronic slow payers, issuing three and sixty day notices, and being a bill collector is a critical aspect of park management. Telephone calls and letters need to be sent, followed up, and timely action needs to be taken to collect rent.

Collection communication takes a special type of person. The per-son responsible for collection may or may not have the personality to collect from people they see every day. If not, see if someone else in your organization would be a better fit.

Managing our Managers and Staff

Once people have been found, hired, and trained, keeping them around is very important. Employees leaving is costly and de-moralizing. It's important to let employees know what is expected of them, and inspect their work. Document their work tasks, and have periodic reviews. This may seem like a lot of work, but the benefits to your business will be great.

One of a manager's important tasks is to be visible to residents and staff. They must be aware of the local politics, changes to city laws and what new issues are the current hot topics. They are your eyes and ears to what is being talked about by your residents.

The following are some ideas to consider when you want loyalty from employees:

-Paid vacation

-Health Insurance, full or partial payment by park

-Give managers permission to take a "resident to lunch" or to do something they feel will help resident satisfaction

-Allow your manager to grant limited "personal time" for doctors appointments and family issues

-Allow law mandated sick days

-Surprise "half day off ". It doesn'tcost much, and will buy productivity when they come back

-"All Hands" quarterly luncheon to review past performance and plans for the near short term

-For special efforts and major projects completed, give paid days off, or gift certificates to take their family out for dinner

It is not the size of thank you, it is the recognition. don't we all like the recognition from work that we can share with family and friends?

Let employees know "your way" of handling resident questions, resident requests, and complaints.

Homes Being Vandalized

Have you had thefts or vandalism to resident homes, yard, and car, park facilities, or had equipment being stolen? It's important to make sure that your staff members are driving the park all day. Make them your eyes and ears for suspicious people or delivery trucks. Have managers develop a relationship with local police.

Train your Neighborhood Watch group and recognize their efforts with periodic coffee and cookies, or lunch.

Buy a used police car and rotate it around the interior and exterior of the park. In one park a resident bought the car for $1,000. It looks like an undercover police car and is working to scare petty thieves. Pit bulls, armed residents, and vigilantes are not suggested.

I know some of the suggestions will take a while to implement and some of these you won'tlike, however it's necessary to make the effort to do something that will be noticed by employees and residents.

You will find that if you have taken the time to do some of the things that were mentioned, the small stuff will come more easily.

MHCO would like to thank WMA (Western Manufactured Housing Communities Association) for this informative article. Thank you!

Vance DiMaria has been a managing partner of Casa Del Rey MHC in Hemet and a partner in other communities in California and Arizona. He can be reached at 949.378.8285 phone; 949.831.1514 fax; and email: jvdmaria@aol.com.

Answer. I remember writing this provision several years ago, and it has survived the test of time - in other words - to my knowledge it has never been set aside or otherwise ruled illegal or unconscionable by any Oregon courts.

The genesis of this provision relates to the change in Oregon law several years ago that prohibited landlords from imposing a "removal on resale" condition when consenting to the sale of older homes in their communities. Essentially, the condition said that if when the resident sought to sell the home to a new buyer, the landlord could consent, but could add the condition that the home had to be removed on resale. In theory, this was designed to permit landlords to incrementally upgrade the age of the homes in their communities.[1]

The law, prohibiting this practice, is found in ORS 90.680(12) which provides that:

A landlord may not, because of the age, size, style or original construction material of the dwelling or home or because the dwelling or home was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code as defined in ORS 455.010:

(a) Reject an application for tenancy from a prospective purchaser of an existing dwelling or home on a rented space within a facility; or

(b) Require a prospective purchaser of an existing dwelling or home on a rented space within a facility to remove the dwelling or home from the rented space.

The quid pro quo for landlords permitting this legislation was twofold:

• A law that expressly allowed landlords to impose maintenance requirements to the exterior of homes (ORS 90.632);
• A law providing that the failure to enforce the maintenance provision did not constitute a waiver of the right to do so in the future. See, ORS 90.414(1)(c).[2]

While these laws worked well for the exterior of older homes, they did not address the interior, where typically, landlords could impose no updating requirements. However, ORS 90.740 (Tenant Obligations), provided for several things I believed we could incorporate into the MHCO Rental and Lease Agreements. Among other things, the statute provides that residents must:

• Keep the dwelling or home, and the rented space, safe from the hazards of fire;
• Install and maintain in the dwelling or home a smoke alarm approved under applicable law;
• Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;
• Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

And since ORS 90.630(1)(a) provides that '_the landlord may terminate a rental agreement *** if the tenant: (a) Violates a law or ordinance related to the tenant's conduct as a tenant... " I felt it was not unreasonable to require that if the resident made any modifications to the home or its heating, cooling or electrical systems, they must comply with all local, state and federal codes and regulations in existence at the time of the modification."

I then consulted with one or more professional inspectors who specialize in manufactured homes, to ask if they could inspect the interior of the home and vet these issues. I was assured they could.

Lest your resident argue that neither they, nor their buyer, wants to pay for this, I would respond that this requirement is not just for their safety, but the rest of the Park's residents. If the home should catch fire, the conflagration could endanger others as well as them.

Lastly, it is my position, which I have vetted with others, that notwithstanding the ORS 90.680(12) proscription against imposing a "removal on resale" condition, it does not apply if the resident has made changes '_to the original construction material of the dwelling or home *** [that] was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code... ."

In other words, it is my belief[3] that if a resident has made changes to the heating, cooling, or electrical systems inside their home, he or she is no longer protected against the prohibition against "removal on resale" condition. So your recalcitrant resident has two choices: (a) Either consent to the interior inspection by a professional, to make sure it is "safe from the hazards of fire" or (b) You can impose a "removal on resale" requirement. And by the way, since you can impose, as a condition of approval, that the new resident has fire and liability insurance, you will want to consider imposing both conditions, and becoming a co-insured on the liability policy. Good Luck!

[1] Tenant lawyers argued that the provision was illegal, since it violated the law prohibiting termination of MHP tenancies without cause. It was the result of this standoff that resulted in the compromise legislation.

[2] When these laws were being negotiated, non-waiver was important to several landlords who had fixed income elderly residents whose homes were in need of exterior maintenance or painting. While they were willing to forego enforcing the maintenance requirements so long as the aged resident was living there, they did not want to waive the right to do so later, if the home was sold, or transferred by inheritance.

[3] You should verify this with your own legal counsel. MHCO's Q&A articles should not be relied upon as "legal advice".

Answer. Let's brush up on Oregon's hazard tree law as it relates to landlord-tenant responsibilities:

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. (Italics and underscore mine.)

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.

1. 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;
  • Landlord 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.

The first question is whether this is a "hazard tree"? You say it is not, but based upon measurement, it is. Note that the statutory definition above says it is a hazard tree if it poses '_ an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future."

My take is that this is a hazard tree, since it meets the physical specs, and not only is capable of causing serious damage, but its root system already has. At the risk of oversimplification, botanically speaking, the tree is the entire plant, not just the above-ground portion. While it is does not sound like it is in danger of toppling on anyone or anything, it does sound as if its root system is interfering with the resident's sewage system.[1]

Again, at the risk of oversimplification, I don't believe the issue is who actually owns the resident's lateral sewer line. Why? Because I suspect that the sewer system was not installed by the resident - it was likely installed at the time the park was developed. It is in the ground, and the ground is owned by the landlord.

Moreover, I believe ORS 90.730 (Landlord's habitability duties) applies in this case. It provides:

(2) A landlord who rents a space for a manufactured dwelling or floating home shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. The landlord does not have a duty to maintain a dwelling or home. A landlord's habitability duty under this section includes only the matters described in subsections (3) to (6) of this section.

(3) For purposes of this section, a rented space is considered uninhabitable if it substantially lacks:

(a) A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord; (Emphasis added.)

The roots of the tree are interfering with the operation of the resident's sewer system, and you as a landlord have a maintenance obligation '_to the extent that the sewage disposal system can be controlled by the landlord."

And if the tree is deemed to be a hazard tree because of the damage to the lateral servicing the resident's space, then ORS 90.730(4), would arguably apply, which provides that the failure to maintain it can constitute a separate habitability violation by the landlord.

Conclusion. Unfortunately, it appears to me that: (a) Absent some language in the hazard tree statutes indicating an intent to exclude that root systems, and (b) your statutory habitability duty to maintain the sewage disposal system, a strong case could be made that remediating the damage caused by the tree roots (regardless of whether it's a "hazard tree" and regardless of whether the resident technically "owns" the lateral - which I doubt) the cost of keeping the system clear of tree roots, is on your shoulders.

[1] Since I was involved with John VanLandingham and others in the drafting of this legislation, I can only speak for myself, but admittedly, it seemed our focus was on the above-ground risks, e.g. toppling trees or branches falling on residents, their homes and automobiles.

Answer. I believe that what you want to do is possible; you want to verify with your own legal counsel.

But let me suggest that you asked the question in the wrong way. Rather than asking whether the law allows this, you should ask whether the law disallows it. In other words, in most cases, when it comes to landlord-tenant legal rights and duties, Chapter 90 sets a "floor" below which you cannot go.[1] So although the law does not address this specific issue, that does not mean you cannot do institute such a policy, so long as it does not violate other portions of the chapter.

What laws might apply? Here are the ones that come to mind:

90.130 Obligation of good faith. Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement. [Formerly 91.730]

90.135 Unconscionability. (1) 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; or

(b) A settlement in which a party waives or agrees to forgo a claim or right under this chapter or under a rental agreement was unconscionable when made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result.

(2) If unconscionability is put into issue by a party or by the court upon its own motion the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose and effect of the rental agreement or settlement to aid the court in making the determination. [Formerly 91.735]

90.220 Terms and conditions of rental agreement; smoking policy; rent obligation and payment. (1) A landlord and a tenant may include in a rental agreement terms and conditions not prohibited by this chapter or other rule of law including rent, term of the agreement and other provisions governing the rights and obligations of the parties. ****

90.262 Use and occupancy rules and regulations; adoption; enforceability; restrictions. (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. ****

90.510 Statement of policy; rental agreement; rules and regulations; remedies. ***

(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. ****

Conclusion. Note that ORS 90.295 pertains to "applicant" screening charges, etc. The statute is very specific and detailed. However, that is because it is limited to situations where a prospective tenant is seeking entry into the park as a tenant. There is nothing in Chapter 90 dealing with background check for guests who will remain at the park in excess of 14 days. However, if I were to draft a rule to implement your suggested policy, I would likely use it as a general template of issues that should be addressed, since some of them are the same, e.g. denial of the right to remain at the premises because of a failure to pass the background check. Additionally, you would want to make the list of disqualifying criteria known in advance, so tenants and applicants knew whether it would be worth the cost and effort to apply.

Lastly, I suggest that you implement such a rule through a rule change in accordance with ORS 90.610. Good luck!

[1] For example, on nonpayment of rent notices, you would not want to institute a payment period shorter than 72 hours. Similarly, you would not shorten the cure time for a rules violation to less than 30 days. Conversely, if you wanted to lengthen the time to pay late rent or cure a violation, you can certainly do so.