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Answer. Their fight is with each other, but the court will decide ownership; who signs the storage agreement is not going to carry the day. So in the interest of moving this forward, let them both sign. But it should be under a written agreement saying that: (a) The home has to be inventoried by a neutral third party; (b) Nothing can be removed by one party without advance written notice to and consent of the other; (c) No action can be taken to sell, remove, or dispose of the home without the permission of the court; (d) Each party preserves their claims, but agrees to accept the decision of the court as final.

As for payment of the storage fee, I'd say they should work that out and include it in the writing. They could alternate payments, one pay and the other reimburse half, or any other solution that assures the park getting paid. Then the party who does not get awarded the home would be reimbursed for the storage fees advanced by the party who does.

I suppose it's also possible that the court could require the home be sold prior to close of probate, and then the proceeds divided in whatever way it decides.

The Law and Sexual Harassment

Sexual harassment in the work place is a form of illegal sex discrimination and is absolutely prohibited by both state and federal law. It has become the most common form of work place harassment. Any unwelcome sexual advance in the work place, either verbal or physical, is considered sexual harassment.

Any such advance or conduct by an employee, independent contractor or vendor may be unlawful if it affects an individual's employment, interferes with that employee's work performance or creates an intimidating or hostile work environment. California and numerous other states have expanded the scope of sexual harassment to include pregnancy and gender identity issues.

Federal and state law recognize that sexual harassment in the work place often produces in employees feeling of anger, frustration, shame, depression and in more extreme cases, post-traumatic stress disorder. As an MHC owner or manager you should know that the law governs all work place relationships. In addition to employees, it covers the relationship between your employees, independent contractors, vendors, outside co-workers, supervisors and your park residents.

Both an employee who is accused of sexual harassment and the employer who is responsible for that employee's supervision may be liable for damages to the victim. Of particular importance is that fact that an employer may be held strictly liable where a supervisor is accused of harassment even when the employer was unaware of the harassment.

The damages that may be recovered by an employee against another harassing employee or the employer include:

1. The recovery of back wages and benefits;
2. The recovery of litigation fees and costs;
3. Order requiring the rehire of the employee; and
4. The recovery of damages for emotional distress and lost reputation. In certain states unlimited compensatory and punitive damages are also allowed and the employer may be ordered to undergo specific sexual harassment training.

What is Sexual Harassment?

There are two basic types of sexual harassment: Quid pro quo (an instance where a supervisor conditions a job benefit on sexual activity); or hostile work environment (where there is a pervasive environment of harassment or innuendo that interferes with an employee's performance). The law recognizes that a single incident of sexual harassment, if severe, can constitute sexual harassment in the work place. Of course, a series of less severe incidents occurring in the work place, when taken together, may constitute sexual harassment as well. The key to determining whether or not conduct rises to this level is to determine whether or not the conduct negatively alters the employee's work environment in a material way. These determinations will be evaluated against a "reasonable person standard". A judge or jury deciding such a case would typically be asked to place a "reasonable person" in the shoes of the alleged victim for the purpose of evaluating whether or not a reasonable person would be injured in a similar way and to the same degree as claimed by the alleged victim.

Sexual harassment can be found in various forms of speech, including routine conversation, the giving of compliments, innuendo, off-color jokes and embarrassing personal inquiries. The common thread is that this speech is sexual in nature and unacceptable to the victim.

Generally, remarks constituting sexual innuendo are always inappropriate and therefore, illegal. Jokes involving a person's sexuality, appearance, orientation, or bodily functions are also usually inappropriate and illegal. It is entirely predictable that such jokes will be offensive to one or more employees who may be listening and therefore unreasonably interfere with their working environment. Remarks of a personal nature including an employee's sex life, sexual preference, history, etc. are also off-limits and should be avoided in every instance.

Sexual harassment constituting quid pro quo amounts to illegal sexual favoritism. An employee who is offered benefits in exchange for sexual favors; denied benefits for the refusal to exchange sexual favors; and assignment and compensation benefits in exchange for sexual favors are all illegal sex discrimination.

Non-verbal harassment can also constitute illegal work place activity on the part of the employer. Examples of this type of behavior include staring, leering, sexually oriented hand gestures, invading personal space, facial expressions and personal gifts of a sexual nature. Of course, unsolicited or unwelcome physical contact of a sexual nature is categorically prohibited. This type of behavior includes any unwelcome touching, blocking, or hazing.

It is important for MHC owners and managers to be aware of the fact that they may not allow displays of sexually provocative material to exist in their work places. This includes the display of such posters, signs, cartoons or pictures in the work place. Unwanted personal letters, sexually oriented emails or texts are also illegal and may form a sound basis for a sexual harassment claim.

Investigating a Claim

As a MHC manager, you may be supervising multiple employees, independent contractors and vendors on a day-to-day basis. You may be the first person to receive a complaint. You may be in a position to respond constructively to such a complaint and potentially keep your company and the owner of the park free from liability. As a park manager, you should always contact your immediate supervisor and the park owner so that they are aware of the alleged conduct and the steps being taken to address and resolve the claim. It may be advisable to retain the services of a law firm specializing in employment law at an early juncture to initiate and coordinate the investigation of a sexual harassment claim in the work place. In this way, much of the investigation can be managed at a professional arms-length, while ensuring that much of the information received remains confidential and protected from later discovery in the event of litigation.

In the event that an employee makes a claim of sexual harassment in your work place, it is very important that the employer (or a law firm on your behalf) take immediate steps to investigate the claim and prevent any further harassment from taking place. Those steps are as follows:

1. Separately interview the victim and the accused. These interviews should be recorded (with the participants' knowledge) or reduced to writing and reviewed and acknowledged by the interviewee;
2. The employee should pursue other avenues of investigation to determine the facts, including discreet one-on-one interviews with other potential witnesses, review of physical evidence, including correspondence, email's, pictures, etc. and assemble all in the investigative file;
3. Once the employer is reasonably sure about the facts, appropriate and immediate steps should be taken to stop the conduct to ensure that it does not continue;
4. The employer should schedule periodic follow-up meetings with the victim and document the results of that follow-up meeting to ensure that the employer's remedial steps are working; and
5. Ensure that there is no retaliation of any kind against the victimized employee.

A MHC owner or manager should take all reasonable steps to protect the privacy of each individual involved in the investigation. Information about the investigation should only be shared with whom it's necessary to investigate and resolve the claim. You cannot promise complete confidentiality because it may be necessary to share certain information with others to gain a complete understanding of the events leading up to the claim. Only those who absolutely need to know within the company should be involved. You should take every reasonable step to protect reputations while learning the facts.

Bill Hart is the managing partner of Southern California law firm, Hart King, and is the client relationship partner for the firm's manufactured housing practice group. He can be reached at (714) 432-8700 or at whart@hartkinglaw.com.

Answer: It means that for month-to-month tenancies, you may not convert from a base rent model to a straight pass-through within 12 months following the date you gave a 90-day rent increase notice under ORS 90.600.

The only exception to this rule is if the rent increase is a part of a formula provided in a fixed term rental agreement (i.e. a lease) that had been entered into one year or more before the conversion to a pass-through program.

Second Question: ORS 90.532(2)(a) (Billing methods for utility or service charges; system maintenance; restriction on charging for water) provides:

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(2) A landlord may not use a separately charged pro rata apportionment billing method as described in subsection (1)(b)(C)(ii) of this section:

(a) For garbage collection and disposal, unless the pro rata apportionment is based upon the number and size of the garbage receptacles used by the tenant.

When it states "number and size of garbage receptacles", is it referring only to bins located at each tenant's space, or can we pro-rata based on the larger trash dumpsters like the 4 yard trash dumpsters our community uses?

Answer: The term "garbage receptacles" is found at four places in ORS Chapter 90. In three of them the term stands alone, and arguably could be construed to refer to either cans or dumpsters. However, only in ORS 90.532(2)(a) does the text add, "used by the tenant." That suggests to me that the drafters intended to limit the term in Subsection (2)(a) to the tenant's garbage receptacles, rather than park-owned dumpsters and bins.

Answer.   The land is owned by the landlord, not the tenant. While the landlord has certain responsibilities regarding the ground,[1] most of these duties apply at the time in installation of the home.

However, ORS 90.730(3)(g) provides:

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

In this case, I don’t believe the landlord has a duty to backfill the eroded area costing thousands of dollars, but certainly should want to get the tenant relocated as soon as possible. If the home is not habitable due to the dangerous condition of the ground, I believe the tenant should be relocated immediately. If there is danger to the home and tenant, he/she should vacate, and resume occupancy only after the home has been relocated.  In the meantime, I would not recommend accepting rent for a space that is dangerous or not habitable.

If the home is damaged, that is the tenant’s responsibility to repair – hopefully he/she has casualty insurance.

In terms of timing, much depends on the severity of the erosion. As for the cost of the move, that is a good question. The statutes don’t address. I believe it could be covered by the tenant’s insurance company, if there is insurance.  If not, and the tenant cannot afford the move, something has to happen. The landlord’s insurance company may provide coverage, since it was a storm-caused event and affected the park’s property. For example, if the storm cause a tree limb to fall on a tenant’s home, the park’s carrier would likely have to pay. It is not much different with water damage endangering part of the park occupied by tenants. Both water and trees causing storm damage are Acts of God, and this is exactly what liability insurance is for. 

If there is no insurance coverage, I would suggest the cost be borne 50-50 between landlord and tenant, since both need the problem to be resolved, and the current statutes do not provide a clear answer. I suppose if the tenant refused – arguing that the space was created by the landlord, and must assume the risk of erosion along the waterfront – it might end up that the landlord should pay, just to avoid litigation.

If the tenant abandons the home, the landlord would proceed under ORS 90.675. However, absent a written letter from the tenant that they are abandoning the home, I always recommend that it be preceded by a 72-hour notice, because then the 45-day letter can be sent 7 days following entry of an order of restitution, and the landlord does not have to make any assumptions about the tenant’s state of mind.

One note of caution: Before issuing a 72-hour notice in this case, the landlord must relocate the home, since it would be risky to demand payment just because the tenant left a dangerous home.

[1]   90.730 Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition. (1) As used in this section, “facility common areas” means all areas under control of the landlord and held out for the general use of tenants.

      (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 unhabitable 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;

      (b) If required by applicable law, a drainage system reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;

      (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;

      (d) An electrical supply 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 electrical supply system can be controlled by the landlord;

      (e) A natural gas or propane gas supply 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 gas supply system can be controlled by the landlord, if the utility service is provided within the facility pursuant to the rental agreement;

      (f) At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

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

      (h) Completion of any landlord-provided space improvements, including but not limited to installation of carports, garages, driveways and sidewalks, approved under applicable law at the time of installation.

      (4) A rented space is considered unhabitable if the landlord does not maintain a hazard tree as required by ORS 90.727.

      (5) A vacant space in a facility is considered unhabitable if the space substantially lacks safety from the hazards of fire or injury.

      (6) A facility common area is considered unhabitable if it substantially lacks:

      (a) Buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

      (b) Safety from the hazards of fire;

      (c) Trees, shrubbery and grass maintained in a safe manner;

      (d) If supplied or required to be supplied by the landlord to a common area, a water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord; and

      (e) Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of commencement of the rental agreement and for which the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal.

      (7) The landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:

      (a) The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;

      (b) The agreement does not diminish the obligations of the landlord to other tenants on the premises; and

      (c) The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated. [1999 c.676 §6; 2007 c.906 §40; 2011 c.503 §10; 2013 c.443 §2; 2015 c.217 §7]

A: The landlord did several things wrong:

(a) he/she failed to reduce the agreement to writing, saying, for example, that the niece had to comply with all of the rules and regulations, that she was responsible for the rent, and generally fully memorializing the arrangement.

(b) the landlord failed to fully qualify the niece and failed to have her sign a rental agreement (or occupancy agreement) before taking possession. However, none of this means that the landlord is not without a remedy.

The original resident is still the tenant under the rental agreement and still responsible for the rent. It is quite possible that the niece is also a "tenant" in a legal sense. The landlord could and should be sending out 72-hour notices to the space naming both the resident and the niece. If the landlord has the phone number of the original resident, he/she should let them know what is going on. Under 90.630 if three or more 72-hour notices are sent with any 12 month period, the landlord may then issue a 30-day non-curable notice of termination. I suggest at least 4 such notices, just to be on the safe side. A more risky (and untested) approach, is to simply issue a 30-day notice of termination under the general (i.e. non-manufactured housing section of the law) landlord tenant law. It is my opinion that the landlord would be within their right to do so, since the occupant is not the owner of the home and the owner of the home is not the occupant. The manufactured housing section of the law - which requires that all notices be "for cause" does not technically apply here because of this distinction. However, before proceeding down this path, the landlord should obtain legal advice.

Answer.   I’ll try.  First let’s start with some definitions:

Section 603 of the FCRA defines a “consumer report” as:

“…any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for (a) credit or insurance to be used primarily for personal, family, or household purposes***

Section 605 provides that “…no consumer reporting agency may make any consumer report containing any of the following items of information:

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(3) Paid tax liens which, from date of payment, antedate the report by more than seven years.

(4) Accounts placed for collection or charged to profit and loss which antedate the report by more than seven years

1. Any other adverse item of information, other than records of convictions of crimes[1] which antedates the report by more than seven years (Emphasis added.)

Based upon the preceding text in subsections (3) and (4), I read (5) to mean that 7+ year old criminal convictions are excluded from the list of 7+ year old adverse information that is prohibited to be a consumer report.

So, from a consumer reporting perspective, I do not believe there is any restriction for convictions over seven years old.

The position of HUD is an entirely different matter.  This has nothing to do with consumer reporting; rather it relates to HUD’s views on “disparate impact”.

Disparate impact holds that certain practices in employment, housing, etc., may be considered discriminatory under the Fair Housing Act, if they have a disproportionately "adverse impact" on certain members of a protected class, i.e. those falling into the following groups: Race, color, religion, sex, disability, familial status or national origin.[2] 

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

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

At footnote 43 of the Memo, the following appears:

***see Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology and Pub. Pol’y 483 (2006) (reporting that after six or seven years without reoffending, the risk of new offenses by persons with a prior criminal history begins to approximate the risk of new offenses among persons with no criminal record). (Emphasis added.)

Does this mean that six or seven years is the maximum look-back that landlords can make when screening someone’s criminal background? I submit that in non-violent crimes, this is not an unreasonable review period. But in cases of crimes to the person, and most significantly, rape and child molestation, I agree a seven year period is not enough. However, the Memo is not to be read to say that any conviction over seven years may not be taken into consideration when screen potential tenants. Its purpose is to “…issue guidance, mostly by way of examples and prior case law, in how the use of criminal history during the tenant-screening process, may, and may not, trigger a disparate impact result.”

Here are some tenant screening tips based upon one of my earlier MHCO Q&As:

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

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

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

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

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

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

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

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

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

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

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

8.Note that according to the Memo, a refusal to rent to an applicant who has a conviction for one or more drug crimes involving the manufacture or distribution (not mere possession) of a federally defined controlled substance is permissible and not subject to a disparate impact claim. In other words, a landlord or manager may legally base the refusal to rent based upon a conviction for manufacture or distribution is not a violation of the Act, based upon disparate impact. Per the Memo: “Section 807(b)(4) of the Fair Housing Act provides that the Act does not prohibit ‘conduct against a person because such person has been convicted … of the illegalmanufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’”

9.ORS 90.303 (Evaluation of Applicant) addresses some of the same issues as in the Memo, but not all of them. And where there is similarity, Oregon law does not go as far as the Memo on the issue of criminal records and disparate impact. Oregon’s statute provides:

(1) When evaluating an applicant, a landlord may not consider an action to recover possession pursuant to ORS 105.105 to 105.168 (Oregon’s eviction statutes – PCQ) if the action:

      (a) Was dismissed or resulted in a general judgment for the applicant before the applicant submits the application. This paragraph does not apply if the action has not resulted in a dismissal or general judgment at the time the applicant submits the application.

      (b) Resulted in a general judgment against the applicant that was entered five or more years before the applicant submits the application.

(2) When evaluating the applicant, a landlord may not consider a previous arrest of the applicant if the arrest did not result in a conviction. This subsection does not apply if the arrest has resulted in charges for criminal behavior as described in subsection (3) of this section that have not been dismissed at the time the applicant submits the application.

(3) When evaluating the applicant, the landlord may consider criminal conviction and charging history if the conviction or pending charge is for conduct that is:

     (a) A drug-related crime;

     (b) A person crime;

     (c) A sex offense;

     (d) A crime involving financial fraud, including identity theft and forgery; or

     (e) Any other crime if the conduct for which the applicant was convicted or charged is of a nature that would adversely affect:

            (A) Property of the landlord or a tenant; or

            (B) The health, safety or right to peaceful enjoyment of the premises of residents, the landlord or the landlord’s agent. 

1. Landlords should not assume that compliance with ORS 90.303 means that a denial of tenancy automatically avoids a disparate impact claim.  Landlords and managers should be extra-cautious in this minefield, since where federal law is more restrictive (i.e. burdensome on landlords), it will likely pre-empt state law.  Thus, compliance with state law, but non-compliance with federal law, can still result in a disparate impact claim under the Fair Housing Act, as amended.

Here are some considerations to keep in mind:

1. The Memo and ORS 90.303 both prohibit screening applicants for arrests, regardless of the conduct that led to the arrest;
2. ORS 90.303 says that an arrest which has not been dismissed, but is still pending (i.e. a conviction is still possible) may be considered in tenant screening. The HUD Memo does not address this issue – so we don’t know what the feds would say. Accordingly, it may be prudent to take a more balanced approach in these situations. For example, rather than having a blanket policy that a tenant will automatically be rejected if their charge is still pending, landlords and managers should evaluate the matter based upon (i) When the matter will be resolved, e.g. a week, a month, or a year? (ii) What was the charge? (iii) If convicted, would the applicant automatically be denied? As noted above, the whole issue of criminal background information is an element of the application process that need not be fully vetted, if, regardless of the crime, its severity or recency, the person would fail the application process on other grounds. If so, there is no need to rely upon a landlord’s criminal background policy at all. However, a word of caution here: Be prudent when selecting a basis for denial. Using a weak reason can be viewed as pretextual if the applicant is a member of a protected class. In other words, beware of using a credit basis for denial if it is “iffy” and exclude the criminal background basis. In these cases, landlords and managers should consult legal counsel; it may be best to use both bases.
3. ORS 90.303 says that a landlord may consider a conviction for certain conduct, generally relating to threats of violence, drugs, sex, or property damage, which would indicate risks to fellow tenants or the landlord. However, the HUD Memo is broader and more subtle (i.e. it demands an evaluation beyond a one-size-fits-all rejection policy). In short, do not rely solely on ORS 90.303, to the exclusion of the more balanced approach demanded by the Memo.
4. Unlike the HUD Memo, ORS 90.303 does not address how long ago the conviction occurred, or require an evaluation of what the applicant had been doing since the conviction. (e. g. evidence of rehabilitation). The General Landlord-Tenant Coalition could not reach agreement on whether to use a five or seven year standard in the statute[3], nor whether multiple convictions should be dealt with differently than single ones. Accordingly, our statute is silent on this issue.

• .  Landlords could be forgiven for feeling they are caught on the horns of a dilemma. If they follow Oregon statutes, it may not be enough. And while it may be sufficient to follow federal law, today that requires a “disparate impact” analysis, which, at best, is a shifting and nuanced set of “guidelines” based upon anecdotal information.

Perhaps most unsettling is the fact that today, a landlord’s good faith effort to comply with the tenant application process is not enough. Instead, unintentional discrimination, now known under the more benign title, “disparate impact”, has become a basis for Fair Housing claims. Yet unlike statutes, which can provide distinct guidance, disparate impact is more of a concept than a law, since it ignores one’s intent, and looks instead to the perceived long term consequences of certain actions based upon empirical statistics, academic writings, analysis, surveys, demographics and footnotes. Is this something landlords can or should be expected to fully appreciate and understand when evaluating a person for tenancy? 

[1] It would have helped if a comma had been inserted after “convictions of crimes”.

[2] Note, many local jurisdictions have additional class, including sexual orientation.

[3] It is believed that most screening services do not report criminal information over seven years old.

Wage and Hour Basics

The federal Fair Labor Standards Act (FLSA) and Oregon law impose different requirements on employers. To add to the confusion, employers must comply with both sets of rules for covered employees. For "non-exempt" employees, this means paying employees at least the applicable minimum wage (currently $7.25 under the FLSA and between $10.00 and $11.25 under Oregon law, depending on location). Employers are also responsible for paying overtime to non-exempt employees for hours worked in excess of 40 hours in a week at no less than one and one half times the employee's regular rate.

Fortunately, Oregon law provides a minimum wage and overtime exemption for resident mobile home park employees engaged in management and maintenance. ORS 653.020(18). As a consequence, mobile home park managers, assistant managers, and maintenance employees residing on the employer's premises generally are exempt from the Oregon minimum wage and overtime requirements. The troublesome issue for Oregon employers is that the FLSA does not provide a similar exemption. The impact is that unless an employee qualifies as a salaried, exempt "white collar" employee under the FLSA, the employee will be entitled to the federal minimum wage and overtime.

Housing under the FLSA

Assuming an employee is non-exempt under the FLSA, is it legal for an employer to credit employer-paid housing toward satisfying an employee's minimum wage? In other words, may an employee pay less than $7.25 an hour in cash, if it also provides free housing to the employee? The answer is a qualified "yes." Under the FLSA, an employer may count as wages the reasonable cost to the employer of furnishing an employee with board, lodging, and other facilities under qualifying circumstances. However, there are strict requirements for counting the housing costs toward the FLSA minimum wage.

According to the U.S. Department of Labor (DOL), in order to take credit for housing as "wages," an employer must satisfy all of the following factors: (1) the lodging is regularly provided by the employer or similar employers; (2) the employee voluntarily accepts the lodging; (3) the lodging is furnished in compliance with applicable law; (4) the lodging is provided primarily for the benefit of the employee rather than the employer; and (5) the employer maintains accurate records of the costs incurred in furnishing the lodging. An employer counting on housing to substitute for part or all of an employee's federal minimum wage will have the burden of establishing all of these factors, if challenged. Satisfying the tests, particularly where an employer requires the employee to live on the employer's premises is a challenging proposition.

If an employer does satisfy the DOL test, the employer may be able to count the cost of the housing toward the federal minimum wage requirement. Thus, if the employer provides housing that reasonably costs it $300 per week, and the employee works 40 hours a week, the employer has satisfied the federal minimum wage without the payment of additional cash wages: $300 is greater than $290 (40 x $7.25 = $290) Note that "cost" of the housing is not the same as "fair market value," and may not include any amount of employer profit. Thus, if an employer provides an employee with a mobile home that typically rents for $1000 per month, the possible cost that the employer may count toward the minimum wage would be less than $1000 per month.

Employers taking credit for housing costs and paying less than the federal minimum wage in cash wages must keep accurate and detailed records establishing the employer cost of the housing provided to employees. Failure to do so will result in the denial of the offset and potential liability for any unpaid minimum wages, liquidated damages, and attorneys' fees.

Is it Worth the Effort?

As discussed above, qualifying for and establishing a minimum wage offset for housing is a rigorous ordeal. Fortunately, there is a risk-free alternative: assuming the employee is a resident manager, assistant manager, or maintenance employee exempt under Oregon minimum wage requirements, simply pay the employee at least the federal minimum wage of $7.25 for all hours worked. That eliminates the federal minimum wage issue, the recordkeeping requirements, and the risks of an expensive DOL audit or lawsuit.

This article does not constitute legal advice. If you'd like more information, feel free to contact me at kpearson@bullardlaw.com or (503) 248-1134.

Answer: ORS 90.680 permits tenants to resell their homes to qualified prospective tenants. The refusal to permit or process new applications would appear, on its face, to be a clear violation of the statute.[1] The landlord certainly has the right to screen the new applicants, but not to refuse them outright. Moreover, it is highly likely that some or all of the existing tenants' rental agreements also mirror ORS 90.680, which gives them the contractual right to resell their home, on site, to qualified prospective purchasers. Thus, on two counts, the Oregon Residential Landlord Tenant Law, and the rental agreement, it would appear that the landlord's conduct would expose him/her to potential legal action. It is also possible that even the potential purchasers may have a potential cause of action against the landlord.

[1] The question does not indicate why the landlord has adopted this policy. While there may conceivably be some rationale explanation, I know of no legal justification for the policy in the Oregon Residential Landlord Tenant Act.

Answer: You should discuss this with the applicant. Reasonable cause for rejection includes the failure of their references to respond to your request for verification within the time allowed for acceptance or rejection. If your rental application provides that it must be rejected within the 7-day statutory approval period (or it is deemed accepted), you may need to terminate first and then ask questions. If you carry on a dialogue with the applicant and let the 7-day period expire without rejection, the law provides that you will have automatically accepted them. So the best approach is to issue the rejection first and then find out the nature of the problem. You can always rescind your rejection once you are satisfied. Additionally, in the future, if you feel that the statutory 7-day period is too short, you may increase it, so long as the applicant agrees. The 7-day statutory period only applies in the absence of the landlord and applicant agreeing to a longer time. Subject to your attorney's approval, I suggest you consider inserting a provision in your applications expressly stating that the approval time will be 10, 12, or some other number of days that you feel is reasonably necessary. Once it is in writing and on the application, then have the applicant sign and agree.

Answer. There is a critical difference between fixed term leases (i.e. those having a definite commencement date and expiration date) and periodic tenancies (i.e. month-to-month tenancies that continue month after month, and only terminate if the tenant gives not less than 30-days' written notice, or the landlord terminates for cause).

Fixed term tenancies may only be for a term of two years or more. Rent is set in the lease, and (hopefully) the landlord has built into the document a rent increase formula (e.g. a "base" amount plus a percentage increase tied to some recognized index, e.g. the CPI, or Consumer Price Index). Not less than 60 days prior to the expiration of the lease term, the landlord must give written notice of the terms of the new lease (including rent), and may include new rules, etc., so long as they are all consistent with the terms of the leases and rules given to new incoming residents. See, ORS 90.545.

Rent for periodic tenancies, such as month-to-month, can only increase through a 90-day notice, pursuant to ORS 90.600. Note that this statute limits its application to "month to month tenancies", so a landlord with a fixed term tenancy cannot use that statute to increase rent for a fixed term tenancy.[1]

Question No. 2. Can a landlord raise rent in the first year of the lease, or does he/she have to wait a year? Is there a way around the first year limitation on rent increases if the resident is on a lease?

Answer. Section 2 of House Bill 4143 (2016) provides as follows:

(2) If a tenancy is a month-to-month tenancy, the landlord may not increase the rent:

(a) During the first year after the tenancy begins.

(b) At any time after the first year of the tenancy without giving the tenant written notice at least 90 days prior to the effective date of the rent increase.

(3) The notices required under this section must specify:

(a) The amount of the rent increase;

(b) The amount of the new rent; and

(c) The date on which the increase becomes effective.

(4) This section does not apply to tenancies governed by ORS 90.505 to 90.850. (i.e. manufactured housing communities) (Emphasis mine.)

So in regards to your question, the one-year limitation only applies to month-to-month tenancies for homes that are not under the law governing manufactured housing communities, i.e. ORS 90.505 - 90.580.

However, note that RVs are not considered manufactured homes, so if you had them in your community and they were on month-to-month tenancies, you would be subject to the one year limitation on rent increase.

And there is no one-year prohibition against rent increases for homes on leases, either inside or outside manufactured housing communities, because, as noted above, it is assumed a rent increase protocol was already built into the lease at the time it was signed by the landlord and tenant. The state law cannot interfere with that contractually agreed-upon arrangement. So you don't have to figure out a work-around for leases - just build in a good formula to cover the years of the lease term.

Question No. 3. What about rent increases in the Portland metro area? What are the limitations?

Answer. Originally, the Portland rent increase law as it applied to rental homes, apartments, and RVs, contained the one year limitation discussed above. But in 2016, HB 4143 was enacted, which expanded the one-year limitation statewide. So the rent increase law for Portland and the rest of the state is the same with one major exception:

If a rent increase in the city of Portland is 10% or more,[2] the tenant may opt to vacate, and the landlord is required to pay for their relocation assistance. The details are contained in the Portland City Code 30.01.085 (Portland Renter Additional Protections) here.

Question No. 4. Other than leases in the Portland metro area - what are my rights and responsibilities of raising rent in an Oregon manufactured home community.

Answer. There are only two types of tenancies - fixed term (e.g. leases for two or more years) and periodic (e.g. weekly and monthly). As discussed above, the regime for increasing rent for fixed term tenancies is contained in the body of the lease; no statutes or ordinances control.

As for month-to-month tenancies, rent increases are governed by ORS 90.600, which requires not less than 90-days' written notice (plus at least three days for mailing) '_prior to the effective date of the rent increase specifying the amount of the increase, the amount of the new rent and the date on which the increase becomes effective."

Even though the statute does not place any limitations on the frequency or amount of rent increases in manufactured housing communities, there are indirectly some common sense limitations: e.g. what are other parks charging in the area with the same or similar amenities?

Question No. 5. Finally, what about rent increases in RV parks - are the terms the same for RV parks as manufactured home communities?

Answer. As noted above, rent increases for RVs on periodic tenancies, inside or outside of parks, are treated the same as for tenants in rental homes and apartments; the law requires not less than 90 days' written notice, and prohibits increases until after the first year of the tenancy. The big exception is for the city of Portland, in which increases of 10% or more have some rather harsh financial consequences to landlords.

Advance notice of increase requirements or rent increase limitations do not apply if the tenant is on a lease (unless provided in the lease itself), since both parties agreed, in advance, to the rent formula in the written document.

[1] However, notwithstanding the limited application of ORS 90.600, I personally believe that a landlord may (with assistance of competent counsel) include in a lease, a program, not unlike that contained in ORS 90.600, providing that the rent may be increased, say annually, with 90-days' notice, in an amount not to exceed X% of base rent, thus giving the landlord the ability to vary rent increases not tied to an index, but rather to the landlord's business needs.

[2] Be careful here! The percentage increase applies to "Rent" and "Associated Housing Costs" which are defined in the ordinance.