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Answer. The land belongs to the landlord, and with the exception of (a) what a tenant plants on their own space[1], and (b) hazard tree responsibilities under ORS 90.727, it is my opinion that what grows out of the ground is the landlord's responsibility. Thus, the trees are the landlord's responsibility, and certainly, they cannot be left to grow to the point of prohibiting removal of a home - or to put it another way, if the trees are permitted to grow in such a manner as to block homes, it is the landlord's responsibility to deal with the cost of removal, so the home can be relocated.

As for the landlord's liability for costs to move the home, etc., I'm going out on a limb - pardon the pun - but that is really a matter of causation, i.e. why did the landslide occur? You did not state in your question that the tenant was somehow responsible for the slide, so I'm going to assume it was an "Act of God". Most good liability insurance policies do cover "Acts of God" events, and hopefully the landlord has such a policy.

So if the ground moves due to earthquake, flooding, shifting, etc., the cost to relocate the home is probably something the tenant would claim against the landlord. If the insurance carrier provides coverage, then that will be the source of payment to the tenant. If there is no such coverage, the question becomes whether a landlord can be held liable for an event the landlord did not cause, i.e. an "Act of God". Without doing a little research, I don't have a good answer, but that is a good reason for the landlord to want to have a good liability policy.

As I've written before, the landlord is in the business of renting out the ground, and therefor has the incentive to insure against risks to the ground, even those caused by "Acts of God". Tenants do not have an insurable interest in the ground, and accordingly, one would not expect them to assume the risk of something happening to property owned by the landlord.

[1] Your question did not indicate that the trees were planted by the tenant or on the tenant's space. In any event, it seems to me that other than maintaining the trees on one's space (subject to the hazard tree statute) they are still the landlord's responsibility, since they will remain when or if the tenant moves their home out.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Answer. Your questions are all good ones, but generally are dealt with in the utility pass-through laws.[1] Here is a summary:

1. Right to Pass Through Utilities. If a written rental agreement so provides, the landlord may require tenants to pay a utility or service charge that has been billed by a utility or service provider to the utility or service provided directly to the tenant's space as measured by a submeter

1. Permitted Charges. The utility or service charge to be assessed to the tenants may consist of:
   1. The cost of the utility or service provided to the tenant's space and under the tenant's control, as measured by the submeter;
   2. The cost of any sewer service for stormwater or wastewater as a percentage of the tenant's water charge as measured by a submeter, if the utility or service provider charges the landlord for sewer service as a percentage of water provided; and
   3. A pro rata portion of any base or service charge billed by the utility or service provider, including but not limited to any tax passed through by the provider.

1. Prohibited Charges. The utility or service charge may not include:
   1. Any additional charges (including any costs of the landlord), for the installation, maintenance or operation of the utility or service system or any profit for the landlord; or
   2. Any costs to provide a utility or service to common areas of the facility.[2]

1. Unilateral Amendment. Landlords may unilaterally amend a rental agreement to convert a tenant's existing utility or service billing method to a submeter billing method. The language in the amendment must fairly describe the submetering provisions.

1. 180-day Notice. Landlords must give the tenants not less than 180 days' written notice before converting to a submeter billing method. (PCQ Comment - I believe landlords can send out the unilateral amendment anytime - It does not have to correspond to when they send the 180-day notice out. The "unilateral amendment" language means that the landlord does not need tenant "consent.")

1. Access to Install or Maintain Meters. Landlords must give notice before entering a tenant's space to install or maintain a utility or service line or a submeter that measures the amount of a provided utility or service.
   1. PCQ Comment - The statute does not treat submeter installation as something that must wait until the 180-day notice is mailed. Installation may commence at any time following unilateral amendment of the rental agreement.
   2. The landlord must give tenants at least 24 hours' actual notice of intent to enter and the landlord or landlord's agent may enter only at reasonable times.
      1. PCQ Comment - Although the statute only says "actual notice" (e.g. phone call or phone message left on recorder) I would make sure it is in writing. If it's mailed the landlord would have to add three additional days before gaining entry. If delivered, and the clock time of delivery was put on the notice, the landlord wouldn't have to add any additional time beyond the 24 hours. The 24-hours applies to the minimum amount of advance notice - not to the actual date of intended entry - so long as the entry is not within the 24-hour period.
   3. Landlords may not enter if the tenant, after receiving the notice, denies consent to enter. The tenant must assert this denial of consent by giving actual notice of the denial to the landlord prior to, or at the time of, the attempted entry.
      1. If the tenant refuses to allow lawful access, landlords may obtain injunctive relief to compel access or may terminate the rental agreement with 30-day notice under ORS 90.630 (1). In addition, landlords may recover actual damages. I've never seen this happen, although I have seen situations where some tenants refuse to allow the installation, but they usually come around, since the benefits are well known.
      2. PCQ Comment - Once the amendment is in effect the landlord can start the submeter installation anytime thereafter.

1. Reduction of Base Rent. If the cost of the tenant's utility or service was included in the rent before the conversion to submeters, landlords must reduce the tenant's rent upon their first billing of the tenant using the submeter method.
   1. Although the statute does not set forth a "formula" for calculation, the rent reduction may not be less than an amount "reasonably comparable to the amount of the rent previously allocated to the utility or service cost averaged over at least the preceding six months."
   2. Before landlords first bill the tenant using the submeter method, they must provide the tenants with written documentation from the utility or service provider showing their cost for the utility or service provided to the facility during at least the six preceding months.
2. Prohibition on Subsequent Rent Raises. During the six months following a conversion to submeters, landlords may not raise the rent to recover the costs of installing, maintaining or operating the utility or service system or of new lines or submeters.
   1. Except as part of the rent, landlords may not charge the tenant for the cost of installation or for any capital expenses related to the conversion to submeters or for the cost of maintenance or operation of the utility or service system. (The term "operation" includes, but is not limited to, reading the submeter.)
   2. PCQ Comment: What this means to me is that the landlord can raise rent in the ordinary course after the six month period and apply it toward recoupment of the capital costs. However, I would not "advertise" it and the rent raise statute (ORS 90.600) does not require landlords to do so.

1. Entry to Read Submeter. Landlords or their authorized agent may enter a tenant's space without tenant consent for the purpose of reading a submeter. The following restrictions apply:
   1. Landlords may not remain on the space for a purpose other than reading the submeter.
   2. Landlords may not enter the space more than once per month.
   3. Landlords may enter the space only at reasonable times between 8 a.m. and 6 p.m.

[1] See, ORS 90.531 - 90.539.

[2] Note: Common area utility charges may be passed through, but that right must be included in the rental agreement and the amount passed through per tenant must be calculated on a proportionate basis, e.g. the number of spaces in the park being the denominator.

Do You Need an Attorney?

Oregon, unlike our neighbor to the North, does not require landlords to obtain the use of an attorney to appear in FED court. 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 MHCO, from an experienced attorney, or by consulting with a knowledgeable community management company.

Strict Compliance

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.

The Prevailing Attorney Fees Trap

To underscore the importance of making sure the notice is correct before filing in Court, consider this scenario: Your tenant is late in paying the rent. You quickly fill out and mail a 72-hour notice, wait six days and then file in Court. At the first appearance (discussed below) you learn that the tenant is represented by legal counsel who has filed an answer alleging that the notice is defective. You are now faced with the prospect of having to go to an attorney to find out just exactly what is wrong with your notice. To your dismay, you learn that you sent the notice out on the 7th of the month, rather than the 8th.[1] You were one day too early. While this might seem to be a technical and unimportant mistake - the tenant still got five full days after the 7th of the month - it is not. In legal parlance, the defect is "jurisdictional," meaning that the Court has no alternative but to dismiss the case. To make matters worse, since the tenant's attorney filed an answer in Court, the tenant is the "prevailing party" and you must pay his or her legal fees.

Use of Current Legal Forms (MHCO has over 60 Forms Available to Members)

Too many times landlords and managers fall into the trap of using outdated legal forms - or worse - they hand-draft their own notices. This can be fatal in Court. As noted above, the Courts enforce strict compliance with the statutes. The use of a hand-drafted notice is fraught with pitfalls: The number of days to correct the default might be incorrect, the statement of the default might be insufficient, or the description of the landlord's remedies might be overstated.

Equally dangerous is the use of old forms that have become outdated due to changes in the law. Landlords and managers should always note the date appearing at the bottom of the form. If the date of the form precedes the most recent legislative year (e.g. 1997, 1999, 2001, etc.) you should check with the forms provider (e.g. MHCO) to make sure that there have not been any changes to the form.

For example, the 30-day termination for cause notice used to state that if there was a repeat violation within 6 months from the date of expiration of the 30 days, the landlord could issue a non-curable 20-day notice of termination. However, due to a change in the statute, the 6-month period is now measured from the date of issuance of the 30-day notice. In other words, the time within which the landlord may evict for a repeat violation is now measured from a different (and earlier) time period than before. Use of the old form today would incorrectly state the landlord's right to terminate, and arguably be defective.

The First Appearance

Experienced landlords and managers know full well that the first appearance is the time that many, if not most, FEDs are settled. If the default is nonpayment of rent, the landlord and tenant can simply enter into a stipulated payment arrangement providing that if it is not followed by the tenant, the landlord may come back to court and upon filing of the necessary papers, have the judge issue the judgement of eviction.

Pursuant to statute, the first appearance must occur within approximately one to two weeks following the filing of the FED complaint and payment of fees. It is imperative that the landlord or his representative appear at that time. The failure to do so will result in an automatic dismissal. Generally, the Court is more than willing to allow the parties to negotiate a resolution - such as a repayment of rent schedule - that will avoid setting the matter for trial.

Landlords and managers are encouraged to take the first appearance process seriously. If the case can be resolved at this juncture, all parties should strive to do so. If the landlord has a tenant that they fully intend to evict, i.e. no settlement can be structured because of the seriousness of the violation, the facts should be fully discussed with an attorney before the first appearance. Once the case has gone beyond that point and the tenant has secured an attorney, it may be too late. If there is a defect in the notice, for example, it is far better to settle the case early, or unilaterally dismiss it and start over, than to have the matter set for trial and take the risk that the tenant's attorney or the Court will spot the defective notice.

Pick Your Shots

As I have repeatedly emphasized, don't go into Court on a weak case. If the tenant has any sort of network within the community, it is a certainty that at least three things will occur: (1) The tenant will try to have all of his friends and neighbors testify against the landlord; (2) if you lose the case, you can fully expect that some of the tenants who have followed the dispute will try to "test" the landlord's resolve to go back into Court on related issues, and (3) if you ever have to bring another action against the same tenant, he will argue that your claim is "retaliatory,"- in other words, that you are selectively prosecuting him.

Always make sure that you have sufficiently "papered" your file. In most cases, it is helpful to precede a 30-day notice with one or more correction notices or letters requesting voluntary compliance. In this manner the Court will see that you have "walked the extra mile" with the tenant. You do not want to be accused of acting precipitously without having given the tenant fair warning of the consequences of non-compliance.

Conclusion

As noted, the FED process can be daunting to the uninitiated. Sometimes the best lesson is to lose in Court. But the cost of losing is frequently more than financial - it can threaten the landlord's ability to effectively run the community. If in doubt, the safest course of action is to first seek the assistance of those who have been there before you.

[1] You must wait seven full days from the date rent is due, before sending out the notice. If rent is due on the 1st, this means that the earliest you may send out the notice is on the 8th.

An initial question a community owner might have is, "How about my pre-existing community, does it need to comply with ADA issues?" Answer: "It depends." If your community pre-dates the ADA statute, and the community has not gone through any significant renovations (determined on a case-by-case basis), then the community may be "grandfathered in" in most cases. However, there can still be considerations of "reasonable accommodation" and "readily achievable barrier removal" under the ADA that could require a community owner to make modifications to existing structures and to make existing buildings "accessible" to the disabled. There may be no "grandfathering in" under these provisions of the ADA. In addition, if the community has undergone substantial alterations/renovations, this could also trigger ADA compliance.

The next question is whether a manufactured home community is a "place of public accommodation." The ADA defines a "public accommodation" to be "a private entity that owns, leases (or leases to), or operates a place of public accommodation." Examples of places of "public accommodation" include: places of lodging; establishments serving food or drink; places of exhibition or entertainment; places of public gathering; sales or rental establishments; service establishments; stations used for public transportation; places of public display or collection; places of public recreation; places of public education; social service center establishments; and places of exercise or recreation.

Does a manufactured home community fit under these descriptions? Based on discussions with ADA experts, the typical community does not appear to "fit" under any of the enumerated examples of a "public accommodation," assuming the community's facilities are only open for the sole use and enjoyment of the community's residents, rather than the "general public." In some cases, however, a community's clubhouse and office could be determined to be "public accommodations" as they are generally "opened to the public." In addition, the community's office is necessarily "opened to the public" as persons, not otherwise residents of the community, are allowed in and, in fact, are invited in to inquire about available spaces and/or homes in the community.

If the community has "public accommodations" which have "barriers" to "handicap access," then the next consideration is whether the "removal of the barrier" is "readily achievable." The ADA generally defines "readily achievable" as easily accomplished and able to be carried out without much difficulty or expense. 42 U.S.C.S. _ 12181(9). Federal courts have developed several factors in determining what is "readily achievable": (1) nature and cost of the removal; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and resources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including composition, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. Colorado Cross Disability Coalition v. Hermanson Family Ltd. Pshp. The community however will bear the ultimate burden to prove that the barrier removal is not readily achievable. This will be determined on a case-by-case basis for each individual community.

So, how do you lessen the chance of your Community becoming a "target" of an ADA lawsuit? There are no "bright lines" as to whether a community has ADA issues or not. Since an "ounce of prevention is worth a pound of cure," the prudent community owner might be best served by hiring a knowledgeable ADA Consultant to review and comment on whether the community has any ADA issues and how they should or could be addressed. Another, and more conservative approach would be to simply make sure that all of the community facilities are "ADA compliant," even if, technically and legally, you may not be required to do so. Little things can make a big difference in your community. Examples of ADA compliance include: levers on the entrance doors; levers on bathroom doors and fixtures; bathroom fixtures at proper height; proper bathroom accessories; doorways that accept wheelchair access; bathrooms that accept wheelchair access; counters at correct height for wheelchairs users; alternatives (ramps/elevators) to steps into the clubhouse and office; acceptable transitions (no lips) at doorways (interior and exterior); handicap community and van access; acceptable transitions (commonly referred to as "curb cuts") to sidewalks at street junctions and handicap community; and acceptable inclines from community areas to public accommodations, to name a few.

Your ADA consultant can walk your community and let you know what facilities do and do not comply with ADA. Making the necessary improvements will be money well spent, and potentially "ward off" expensive litigation, which litigation, in all probability, will not be covered by your general liability insurance policy. You might also want to turn this into a "PR plus" for your community - i.e., tell your residents about the improvements after they are done! However, such actions may not be right for every community. The community owner should first discuss ADA considerations with its legal counsel to determine what the right course of action under the particular circumstances.

Rob Coldren is a founding partner of the MHI-member law firm of Hart, King & Coldren in Santa Ana, Calif. For over three decades, Mr. Coldren's practice has emphasized representation of mobilehome parks, recreational vehicle parks, as well as park owners and managers. He can be reached at rcoldren@hkclaw.com. John Pentecost is a partner with the firm and specializes in property rights and the law as it pertains to the manufactured housing industry. He may be reached at jpentecost@hkclaw.com. Both can be reached by phone at (714) 432-8700.

Answer. When I went to law school, "drones" were the worker bees. There were no legal classes on them, and I never imagined I'd be writing articles about them today. This is to say that my answer below should be viewed as general in nature. So if you disagree with me, please refrain from a stinging rebuke.

Legally speaking, the law in Oregon and elsewhere is still developing. However, the ones currently in existence are significant, and should be kept in mind for those thinking about using drones, or those feeling harassed by them.

ORS 163.700 Amended March 29, 2016, by Chapter 72, Oregon Laws 2016, defines what we call a "drone" as follows:

"Unmanned aircraft system" means an unmanned flying machine, commonly known as a drone, and its associated elements, including communication links and the components that control the machine.

Of course there are several criminal prohibitions against weaponizing drones[1], causing reckless interference with aircraft, use by public bodies, etc.[2].

Criminal Laws. ORS 837.380 was amended in 2016 to provide:

A person who owns or lawfully occupies real property in Oregon "may bring an action against any person or public body that operates an unmanned aircraft sys- tem that is flown over the property if the operator of the unmanned aircraft system has flown the unmanned aircraft system over the property on at least one previous occasion; and the person notified the owner or operator of the unmanned aircraft system that the person did not want the unmanned aircraft system flown over the property.

However, a person may not bring an action under this section if the drone was lawfully in the flight path for landing at an airport, airfield or runway; and is in the process of taking off or landing.

And there is a major commercial exception:

A person may not bring an action under this section if the unmanned aircraft system is operated for commercial purposes in compliance with authorization granted by the Federal Aviation Administration. This subsection does not preclude a person from bringing another civil action, including but not limited to an action for invasion of privacy or an action for invasion of personal privacy under ORS 30.865.

Under the statute, a prevailing plaintiff may recover treble damages for any injury to the person or the property by reason of a trespass by a drone, and may be awarded injunctive relief in the action. They may also recover attorney fees under ORS 20.080 if the amount pleaded in an action under this section is $10,000 or less.

Further, the Attorney General, on behalf of the State of Oregon, may bring an action or claim for relief alleging nuisance or trespass arising from the operation of a drone in Oregon airspace. The court may also award reasonable attorney fees to the Attorney General if they prevail in their claim.

Reasonable Expectation of Privacy. The laws protecting privacy, have been applied to the use of drones. Accordingly, the 2016 law provides that a person commits the crime of "invasion of personal privacy" if they knowingly record others in an area where they have a "reasonable expectation of privacy. To put the "expectation of privacy" in context, I would suggest that a woman or man going to a public beach with a scantily clad bathing suit, should not expect the zone of privacy to apply to them. However, if they are in their enclosed backyard, they would.

The statute, in more prosaic terms, reads thusly:

Places and circumstances where the person has a reasonable expectation of personal privacy" includes, but is not limited to, a bathroom, dressing room, locker room that includes an enclosed area for dressing or showering, tanning booth and any area where a person undresses in an enclosed space that is not open to public view.

Invasion of personal privacy in the second degree is a Class A misdemeanor.

Answer. When I went to law school, "drones" were the worker bees. There were no legal classes on them, and I never imagined I'd be writing articles about them today. This is to say that my answer below should be viewed as general in nature. So if you disagree with me, please refrain from a stinging rebuke.

Legally speaking, the law in Oregon and elsewhere is still developing. However, the ones currently in existence are significant, and should be kept in mind for those thinking about using drones, or those feeling harassed by them.

ORS 163.700 Amended March 29, 2016, by Chapter 72, Oregon Laws 2016, defines what we call a "drone" as follows:

"Unmanned aircraft system" means an unmanned flying machine, commonly known as a drone, and its associated elements, including communication links and the components that control the machine.

Of course there are several criminal prohibitions against weaponizing drones[1], causing reckless interference with aircraft, use by public bodies, etc.[2].

Criminal Laws. ORS 837.380 was amended in 2016 to provide:

A person who owns or lawfully occupies real property in Oregon "may bring an action against any person or public body that operates an unmanned aircraft sys- tem that is flown over the property if the operator of the unmanned aircraft system has flown the unmanned aircraft system over the property on at least one previous occasion; and the person notified the owner or operator of the unmanned aircraft system that the person did not want the unmanned aircraft system flown over the property.

However, a person may not bring an action under this section if the drone was lawfully in the flight path for landing at an airport, airfield or runway; and is in the process of taking off or landing.

And there is a major commercial exception:

A person may not bring an action under this section if the unmanned aircraft system is operated for commercial purposes in compliance with authorization granted by the Federal Aviation Administration. This subsection does not preclude a person from bringing another civil action, including but not limited to an action for invasion of privacy or an action for invasion of personal privacy under ORS 30.865.

Under the statute, a prevailing plaintiff may recover treble damages for any injury to the person or the property by reason of a trespass by a drone, and may be awarded injunctive relief in the action. They may also recover attorney fees under ORS 20.080 if the amount pleaded in an action under this section is $10,000 or less.

Further, the Attorney General, on behalf of the State of Oregon, may bring an action or claim for relief alleging nuisance or trespass arising from the operation of a drone in Oregon airspace. The court may also award reasonable attorney fees to the Attorney General if they prevail in their claim.

Reasonable Expectation of Privacy. The laws protecting privacy, have been applied to the use of drones. Accordingly, the 2016 law provides that a person commits the crime of "invasion of personal privacy" if they knowingly record others in an area where they have a "reasonable expectation of privacy. To put the "expectation of privacy" in context, I would suggest that a woman or man going to a public beach with a scantily clad bathing suit, should not expect the zone of privacy to apply to them. However, if they are in their enclosed backyard, they would.

The statute, in more prosaic terms, reads thusly:

Places and circumstances where the person has a reasonable expectation of personal privacy" includes, but is not limited to, a bathroom, dressing room, locker room that includes an enclosed area for dressing or showering, tanning booth and any area where a person undresses in an enclosed space that is not open to public view.

Invasion of personal privacy in the second degree is a Class A misdemeanor.

ADA

Under revised ADA regulations, a "service animal" is any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work or task performed by the service animal has to be directly related to the handler's disability.2 The service animal fulfills what the regulations refer to as "recognition and response" tasks and is distinguish from animals that provide emotional support, well-being, comfort, or companionship. The key under ADA is that the animal must be specifically trained to "recognize and respond" a disabled person's certain mental or physical condition, e.g., a diabetic's dog may be trained to notice when the person's blood sugar reaches critical levels and alert the person.3 The ADA service animal test makes no reference to a dog's breed, size or weight, any required professional training or certification or registration or required wearing of a vest, patch or special harness. (Same under FHAA) The DOJ suggests that these are not factors in determining ADA compliance. A so called service animal certification or registration documents that can be obtained online confer no rights under ADA and are not recognized by the DOJ as proof that a dog is a "service animal." 4 On the other hand, DOJ notes that a service animal may be required under local law to be licensed and vaccinated.5

In determining whether an animal meets the ADA service animal test community management may make only two inquires of the disabled person: (1) Is this a service animal that is required because of a disability? and (2) What work or tasks has the animal been trained to perform? Management may not require documentation proving the animal has been "certified," trained or licensed as a service animal. Further, these inquiries cannot be made if it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (for example, an individual is using a dog to assist with vision, or the dog is pulling a person's wheel chair or is providing stability or balance for a person with an observable mobility disability). A "no" answer to no. 1 renders ADA inapplicable, likewise if the task described is unrelated to a disability or is a "non-response" type task. In such cases the answers may drift into areas which must then be assessed under FHAA regulations pertaining to reasonable accommodations for support or comfort animals, discussed below.

Can management ask a disabled person to remove an ADA qualified service animal from the community? No... unless, the animal is out of control to the extent the handler is unable to control it or the animal is not house broken or based on an individualized assessment of animal's actual conduct the animal poses a direct threat to the health and safety of other residents that cannot be mitigated by other means.6 (Same under FHAA) Community rules or guidelines governing "pet" conduct therefore, should be written to apply to "animals" not simply "pets" which make it clear the community may enforce its rules or guidelines to remove a problematic service animal according to ADA standards.

Finally, ADA applies to places of public accommodation. Manufactured home communities and mobile home parks experiencing a HUD or DOJ ADA violation charge have contended that as private property not open to the public ADA is inapplicable. However, it's well established under the regulations and case law that an area within a mobile home community (usually office or clubhouse), apartment complex or condominiums where sales and leasing activities are conducted with members of the general public and areas such as parking lots or spaces that serve these areas are within the definition of a public accommodation subject to ADA. Does this mean the entire community is then a public accommodation? No. However, U.S. District Courts in Arizona and California have held that allegations of a mobile home park hosting and conducting Bingo in the park clubhouse where the public was invited or where estate, garage or rummage sales were conducted in the community where the public was invited could state a claim under ADA that the community was a place of public accommodation. The take away... do not allow the general public to be invited

to attend events conducted in your community or risk becoming "a place of public accommodation."

FHAA

FHAA prohibits discrimination in housing and housing related mattes based on a person's disability defined as: (1) a physical or mental impairment which substantially limits one or more of such person's major life activities, or (2) a record of having such impairment . . . . 7The FHAA's definition of prohibited discrimination encompasses "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 8 This applies to assistance animals that may not satisfy the ADA definition of a "service animal" but nevertheless provide emotional support, comfort, well-being or companionship for a disabled person seeking an exception to a community's "no pet" or "restrictive pet" rules or guidelines.

Generally, an "assistance or emotional support animal" is a "companion animal" that provides a therapeutic benefit by alleviating or mitigating some symptom caused by an individual's mental or psychiatric disability as confirmed by a professional health care provider. Unlike ADA, these animals require no specific "recognition and response" training and management may ask the person for documentation of a disability and disability related need for the assistance animal, but may not request access to medical records or medical providers or to provide detailed or extensive information or documentation of the persons physical or mental impairments. These animals are not limited to dogs but may be any other animal within reason if the person requesting the accommodation has a confirmed disability supported by a medical professional.9

Thus, prohibited conduct under FHAA is refusing to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling. A request for a reasonable accommodation may be denied only if providing the accommodation is unreasonable, defined as imposing an undue financial and administrative burden on the community or if it would fundamentally alter the nature of the community's operations. This could include a denial based on increased liability insurance costs if an "aggressive dog breed" were allowed in the community thus potentially creating an undue financial burden.

Requests for a reasonable accommodation regarding assistance animals must be evaluated objectively and thoroughly through an interactive process with the person requesting the accommodation. Each request should be evaluated on a "case by case basis" promptly and fairly, on its own facts. Naturally, if questions arise, consult the community's counsel, especially regarding state law that may parallel ADA and FHAA or be more expansive in coverage regarding definitions of service and assistance animals. The above is not intended as legal advice but offered as general information. Consult your legal counsel for specific questions or issues regarding your particular communities.

Robert G. Williamson, Jr. is partner with Hart King. He represents manufactured home community owners and managers with their various legal issues including FHA and ADA compliance issues. He may be reached at rwilliamson@hartkinglaw.com or at 714.432.8700

1 Set forth in HUD's Fair Housing and Equal Opportunity Notice

(FHEO-2013-01) issued April 25, 2013 ("HUD Notice").

2 28 C.F.R. _ 36.104

3 DOJ, Frequently Asked Questions about Service Animals and

ADA, July 20, 2015, www.ADA.gov.

4 Ibid.

5 Ibid.

6 28 C.F.R. _ 36.302(c); HUD Notice, supra., fn. 1.

7 42 U.S.C. _ 3602(h)

8 Giebeler v. M&B Associates, 343 F.3d 1143, 1146-47 (9th Cir.

2003); 42 U.S.C. _ 3604(f)(3)(B).

9 HUD Notice.