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The most effective solution is getting good tenants in the first place. Screen each and every potential tenant for credit history, criminal convictions, and evictions. Set your application standards and stick to them (i.e., don't fall for any "hard luck" stories). There are certain restrictions on what may be considered in the evaluation process, so consult an attorney on the specifics. (NOTE: If you charge an application fee, you must provide applicants with written notice of your screening criteria, the amount of the screening charge, your application process, and the applicant's right to dispute the accuracy of any reported information.)

After you approve an application, make sure that the tenant signs a written rental agreement, rules, and any other rental documents before taking possession of the rental unit. While it is possible to establish a tenancy without any rental documents, it is always more difficult to handle potential disputes without written documentation. don't agree to any "informal" tenancy arrangements - they typically lead to disputes.

After the tenancy begins, be responsive to any complaints by the tenant concerning the condition of the rental. For example, send a handyman or contractor over to inspect and/or repair any complaints made by the tenant. While there are limits on what constitutes a "habitability" issue affecting the actual livability of the rental, err on the side of making repairs unless the repair issues become unreasonable.

Finally, treat your rental like the business that it is. If rent is due on the 1st of the month, then issue 72-hour nonpayment notices on the 8th of the month when rent is late, as allowed by Oregon law. Address tenancy problems (i.e., unauthorized occupants, pets, maintenance issues, etc.) as soon as you learn of them. While it might not be possible to avoid all tenant disputes, addressing problems as soon as they arise will greatly improve your legal position if you end up in court.

Mark L. Busch
Cornell West, Suite 200, 1500 NW Bethany Blvd
Beaverton, OR 97006
(503) 597 - 1309

mark@marklbusch.com

www.marklbusch.com

A: The writ of execution is necessary only in those cases in which the tenant refuses to vacate after the court has awarded possession of the space back to the landlord (also known as a "judgment of restitution"). If the tenant has voluntarily left following issuance of the judgment of restitution, the landlord may declare an abandonment after 7 days following the judgment. If a writ of execution has been issued, landlords do not have the right to obtain recovery of storage charges upon timely removal of the home by the tenant. Accordingly, the writ should only be served by the sheriff in those cases in which the tenant has refused to vacate following issuance of a judgment of restitution.

According to HUD, criminal background checks have a disproportionate impact on minority home seekers, largely due to disproportionate conviction and incarceration rates for minorities and others in protected classes. HUD's Guidance memo identifies methods of 'proof' that are used when analyzing a fair housing claim in the context of a housing provider who denies an applicant tenancy based in whole or in part on a criminal background check. .

In other words, even though tenancy is not denied based on direct discrimination against the applicant as a member of a protected class (race, religion, nation origin, etc.), background checks that reveal convictions could nevertheless, in HUD's view, have a disproportionately negative effect (disparate impact) on members of protected classes resulting in a discriminatory housing practice. HUD actually isn'toutlawing use of criminal background policies, but rather is aiming to prevent landlords, including Parks and Communities from using the background check information since use of these policies if that use ultimately has a discriminatory effect on people in a protected class.

HUD's New Guidance memorandum will certainly impact use of criminal background checks since many manufactured housing communities may learn that their own current policy on how to use applicant screening procedures may expose them to liability. This article will discuss two things: (1) how HUD evaluates denials based in whole or in part on use of a criminal background check; and (2) factors a community should keep in mind when formulating or employing a policy about criminal "history".

All communities are unique, and so too are the legitimate interests that a community must protect. A community's size, location, and its age all play a direct role in corresponding issues regarding safety, security, and/or criminal activity. A community's initial decision to even use a "criminal background check" policy in the first place rests largely on whether the policy will further that community's interests, be it safety, security, or crime prevention, and ultimately enhancing the living environment for all residents.

By and large, all communities share core interests. Among these are screening out financially unqualified applicants and minimizing risk to community residents by applicants convicted of recent violent crimes, drug related crimes, and/or crimes involving children,. Of course, the specific interest in maintaining a criminal background check policy varies depending upon the nature and characteristics of the community that justify the purpose.

If your community uses a "criminal background check,"here's how the typical scenario goes: Applicant seeks to lease a space, submits the required application with supporting documentation, and answers "yes" to having a prior felony conviction. Owner denies the application, on the conviction. Applicant, now angry, lodges a fair housing complaint alleging the community discriminated against him/her. Once that complaint is assigned, here's the 3-step analysis HUD will use to address the claim:

Step 1: The applicant must prove the background check policy has a discriminatory effect, meaning the policy results in a disparate impact on a group of persons in a protected class. Said applicant need only prove the policy "actually or predictably results" in a disparate impact. This will usually involve an extensive investigation of community residency applications reflecting a criminal conviction.

Step 2: If the applicant satisfies step 1, the community must then show the background check policy is justified, meaning the community must show: (a) that it has a substantial, legitimate, nondiscriminatory interest for screening an applicant's criminal background; and (b) running the criminal background checks achieves or furthers this interest.

Step 3: If the community establishes that the policy furthers a substantial interest, the burden shifts back to the applicant to prove the community interest could be served by another practice with a less discriminatory effect.

Simply put, it's a game of ping-pong with some vague standards of proof. So, what should communities do? Well, if you screen criminal backgrounds when deciding if an applicant qualifies, you should ensure that your policy stays within HUD's newly published requirements. Review your policies with your legal counsel to confirm this.

At a minimum, a community should keep the following important points in mind.

First, arrests are not sufficient. An actual conviction is required. There are also big differences between misdemeanor convictions v. felony conviction.

Second, blanket tenancy prohibitions for all convictions is not wise. Rather, a policy should focus on (1) what the conviction was for (i.e. nature and severity of the conviction); (2) when it happened (i.e. how much time has elapsed since the conviction, as recidivism risk decreases gradually); and (3) the applicant's post-conviction actions, particularly rehabilitation efforts. Keep a policy objective, with distinct standards.

Third, criminal background checks may be best when implemented as a final step in the application process, after a rental history overview, a credit check, and references. There may be applicants who do not meet a community's standards based on these other criteria, meaning a criminal background check may not be needed.

While HUD guidelines are national and set a base standard, some states may further regulate the application process by statute, meaning a community must comply with stricter standards. As always, it is important to work with your legal counsel to ensure you comply with specific standards applicable to your state.

No community wants to be on the receiving end of a discriminatory housing claim. To avoid the potential pitfalls of a "criminal background check" policy, communities should develop and employ policies in close consultation with legal counsel.

Ryan Egan is a litigation associate with the Southern California law firm, Hart King, and is a member of the firm's Manufactured Housing Industry Practice Group. You can reach Ryan directly at 714.432.8700 ext.332 or at regan@hartkinglaw.com. This article is for general information purposes and is not intended to be and should not be taken as legal advice for any reader.

Answers to Questions Nos. 1 and 2. Under the Fair Housing Act ("the Act") landlords are required to make reasonable accommodations to the rented facilities and common areas, if so requested by a handicapped tenant or their legal occupant. This law applies to the use of assistance animals.

A "reasonable accommodation" is a reasonable change, exception or adjustment to a rule, policy, practice or service that will enable a handicapped person to have an equal opportunity to use and enjoy the rented facilities and common areas. There must be an identifiable relationship between the requested accommodation and the person's disability. Landlords are not required to make requested accommodations if doing so would impose an undue financial or administrative burden upon them or fundamentally alter the nature of the landlord's operations. In order to address the request, Landlords are entitled to obtain information that is necessary to evaluate it for a reasonable accommodation. With respect to a person, a "handicap" means: (a) one with a physical or mental impairment which substantially limits one or more major life activities; (b) one with a record of such impairment; or (c) one who is regarded as having such an impairment. Juvenile offenders, sex offenders, persons who illegally use controlled substances and those with a disability whose tenancy would constitute a direct threat to others, or result in substantial physical damage to the property of others, are generally not protected under the Act. If the landlord refuses a requested accommodation, the requester is encouraged to have a discussion with the landlord concerning an alternative accommodation. This is a summary only and not intended to constitute legal advice. For more information, landlords, tenants and legal occupants of tenants are encouraged to consult with their attorney or a Fair Housing expert if they have any questions regarding their rights and responsibilities.

Note: MHCO has Form No. 15 which permits residents to make reasonable accommodation requests.

I think my first step (which may have already occurred prior to the rule changes, is determine the extent of the problem for emergency vehicles along the narrow streets. Does a single car slow or restrict access to emergency vehicles? In short, how problematic is it for a single car to be parked along the street? Does it create any danger to the community, its drivers, or the emergency vehicles? Once you have that baseline, you will have a sense about the safety of making a reasonable accommodation by permitted on-street parking.

Secondly, if I were to permit anyone to park on the street (assuming the safety issue is properly vetted), I think I would insist that they have a handicapped parking permit. That way, anyone parking on the street without a permit would be easier to spot. (Although you should consider whether the permit is expired or being abused, or in the name of the car's owner.)

The handicapped caretaker is not your direct responsibility - she was hired by your resident. I do not believe convenience is the litmus test here - it's whether the rule prevents her from performing her tasks, and coming and going to the site. I think the biggest problem, and one you've not mentioned but certainly are thinking, is this could become a slippery slope. The more cars you permit to park on the street, the more others will try the same thing. At this point, I believe I'd take the position that if the parking area can accommodate two cars, then that's where they should park - even if it means shuffling them around, handicapped or not.

I do not believe handicapped caretaker has standing to request a reasonable accommodation, since he/she is not a tenant or occupant of the home. But I have not research this issue; you should verify this with your own attorney.

As for the non-handicapped caretaker, a little walk to and from the guest parking is not the end of the world. "Convenience" for a non-handicapped person is not a basis for a reasonable accommodation under the ADA, Fair Housing law, or common sense.

Answer: In theory, you should be able to give a 20-day non-curable notice within the 30 days if the same violation occurs. This is because the law provides that the 20-day notice may be issued if substantially the same violation occurs within six months of the date of issuance of the 30-day notice. A few years ago, the law measured the six month period from the end of the 30-day period. However, the law was changed a few years ago, and it would seem that now you should not have to wait until expiration of the 30-day period before issuing a 20-day notice. Otherwise, after the first 30-day notice, the tenant could speed through the park with impunity for the entire 30 days and the landlord could do nothing until the violation occurred again. This result makes no sense. However, there is a related situation which gives a different result: What if the violation was not an "act" such as speeding, but a "failure to act," such as not maintaining the yard? In that case, if the tenant failed to clean up the yard within the 30-day period, the landlord would be entitled to file for eviction immediately after expiration of the 30 days and would not have to issue a 20-day notice.

Beginning, then developing the process

In promoting positive, ongoing relationships with residents, we must remember to treat each of them as a valued customer. Expressing interest in their concerns and meeting their needs when problems arise can accomplish this. Contented residents create fewer problems than unhappy individuals, which in the long run affect the owner's bottom line. Rent control is often a result of poor resident relations. Additionally, loss of your valuable time and expensive legal cost can be saved through positive resident relations.

Development of good resident relationships does not just happen, as it is an ongoing process that you have to continually work at. Sound communication skills are a necessity in dealing with residents.

The development of resident relations begins during your first meeting with the resident. We have all heard how important first impressions can be and in this case it is definitely true. It is important to start off courteous and have a positive attitude at all times. Residents want to be treated fairly and with respect. Positive first impressions also include how you are dressed and the professionalism displayed in your mannerisms.

There are three key aspects of communication to consider when dealing with your residents than can lead to positive relationships: verbal communication, nonverbal communications, and written communications.

Verbal Communication

Verbal communication comes down to controlling the tone of your voice and being a good listener. Often the most important factor is not what you say, but how you say it. For example, if you remain calm, with no anger in your voice, you probably can defuse an agitated resident. To help eliminate misunderstandings you must respect the compliant or the message given to you, then clarify it so that both sides understand what is being said. Let the resident know you are listening to them and make them aware that they are being heard.

Nonverbal Communication

Nonverbal communication can sometimes reveal more about what you are saying than words you actually speak. Gestures, postures, appearance and facial expressions are examples of nonverbal communication that you should be aware of. Also, it is important that you maintain eye contact with the resident while he or she is speaking. This indicates to them that you are paying attention to what they are saying and that you are interested.

Written Communication

Written communication will play an important role in developing good resident relations. This is an effective way to get across a message or make a point. Your correspondence should be in a short, concise manor and preferably no longer than one page. You should be direct and courteous; avoid being rude, negative or accusatory. Whenever possible, start and end your correspondence with a neutral or positive statement.

While written communication is necessary, it should be not substituted for face-to-face contact. We often see owners and managers try to avoid speaking directly with residents by sending them a written notice or violation letter. The problem with written communication like this is you cannot get all the facts and there may be a reasonable explanation of a violation of which you were unaware. This makes you look uninformed and leaves a negative impression on the resident. Giving residents positive feedback can also help in developing better relationships. If a resident maintains a nice clean space, you should tell them. This lets them know you care and encourages them to continue the positive behavior. After a resident complies with a request to clean up their space, let them know how great it looks and how much you appreciate their cooperation.

In Conclusion

Good resident relations require a well thought-out plan and a commitment on your part to make it work. If you understand your residents and always show a caring, positive attitude when dealing with their concerns, you will see favorable results. Development, and use of good communication skills will make the process much easier and lead to a smoother running community with fewer problem.

Answer:  The answers to some of your questions can and should be found in the rules and regulations. For example, addressing whether attachments and outbuildings stay or are removed.[1] It is problematic to me to permit a resident to make such additions at the outset, without addressing what happens when the home is put up for sale.  If additions have been made for which consent was never obtained, or which do not conform to the applicable building codes, management should move quickly, since acceptance of rent with knowledge of the noncompliance could lead to waiver.

Assuming that the attachments and outbuildings are in a state of disrepair, SB 277 provides a remedy to management at any time, including the time of sale. However, without knowing the exact nature of these “improvements” it is hard to know whether insisting upon complete removal is appropriate or legal. 

Also, much depends upon other factors. How much will this cost the resident? How long will it take? Are the “improvements” not really beneficial to the space, and detract from the appearance of the whole area? Are they code-compliant, or can they be made so? As discussed below, SB 277 continued parts of the earlier disrepair/deterioration law found in ORS 90.632, but tightened up portions of it, due to resident complaints about abuses.[2] And interestingly, it now includes reference to “aesthetic” and “cosmetic” improvements, which may be helpful in your situation.

MHCO has significantly changed its current form No. 55 to address the changes in the new law. The major issue going forward is for managers and landlords to be able to recognize when to use Form No. 55 to address disrepair and deterioration conditions, versus Form No. 43C, which is appropriate for violations relating to maintenance and appearance of the space.

If the disrepair or deterioration to the exterior of the home or related structures creates a risk of imminent and serious harm to dwellings, homes, or persons in the Community (e.g. dangerously unstable steps, decking or handrails), there is a 30-day period to repair.

For all other (i.e. non-dangerous) conditions, the minimum period to cure is now 60 days.  As before, the new Form 55 provides a place for landlords and managers to specifically describe the item(s) in need of repair.

Trap: If there is imminent risk of harm, and the landlord/manager intends to give the tenant 30 days rather than 60 days, SB 277A requires that they not only describe the item(s) in disrepair, but also describe the potential risk of harm.  There is little question but that the failure to do so would invalidate the notice. The new Form 55 prompts users to describe both the violation and the potential risk of harm.

Tip: The new Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. Remember, you cannot expect the tenant to be a mind reader – just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity. 

SB 277A now provides that at the time of giving a prospective purchaser the application and other park documents, the landlord/manager must also give them the following:

• Copies of any outstanding notices of repair or deterioration issued under ORS 90.632;
• A list of any disrepair or deterioration of the home;
• A list of any failures to maintain the Space or to comply with any other provisions of the Rental/Lease Agreement, including aesthetic or cosmetic improvements; and
• A statement that the landlord/manager may require a prospective purchaser to complete the repairs, maintenance and improvements described in the notices and lists provided.

Tip: Note that the new law combines not only the original ORS 90.632 notices relating to damage and deterioration of the home or structures, but also a list of failures to maintain the space and other defaults, including aesthetic or cosmetic improvements. This may or may not include 30-day curable notices under ORS 90.630 for failure to maintain the space. But in both cases (i.e. defaults relating to structures, and those relating to the space), the new tenant appears to get the six-month period to comply. It may be that if the “improvements” are aesthetically an eyesore, SB 277A may be of use in getting them either cleaned up or removed.

This represents and interesting shift in Oregon law, and possibly for the better. Many parks historically gave “resale compliance notices” to tenants who were placing their homes up for sale. However, until now, there was some question whether a landlord could “require” as a condition of resale, that the existing tenant make certain repairs – absent having first sent a 30-day notice.[3] Now, under the new version of ORS 90.632, it appears landlords may make that list, and let the tenant/seller know that unless the work is completed before sale, it will be given to the tenant’s purchaser upon application for tenancy.

So, if the landlord/manager accepts a prospective purchaser as a new tenant, and notwithstanding any prior landlord waivers of the same issue(s), the new tenant will be required to complete the repairs, maintenance and improvements described in the notices and lists.

Under Section (10) of SB 277A, if the new tenant fails to complete the repairs described in the notices within six months from commencement of the tenancy, the landlord “may terminate the tenancy by giving the new tenant the notice required under ORS 90.630 or ORS 90.632.”  This appears to say that a new tenant who fails to complete the items addressed in the notices and lists within the first six months, will thereafter be subject to issuance of a curable 30-day or 60-day notice to complete the required repairs. Accordingly, this is how the new MHCO Form 55 will read.

[1] Caution should be exercised in drafting, however.  If the rule says the “improvements stay” but they are an eyesore, management may be left with more than it bargained for. So whether it stays should be phrased as an option for management, if and when the time comes.

[2] Without commenting on the nature or cause of the complaints, suffice it to say that when the press gets ahold of a tenant/park dispute, the legislators are not far behind, and the end result is not usually helpful to landlords. The not-so-subliminal message here is that such disputes are better resolved quietly and quickly, lest they become a cause célèbre.

[3] This is because ORS 90.510(5)(i) provides that the rental or lease agreement for new tenants must disclose “(a)ny conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;

Screening Criteria

The manufactured housing section of Oregon's landlord-tenant law provides that "Any conditions the landlord applies in approving a purchaser... as a tenant in the event the tenant elects to sell the home" should be disclosed in the rental or lease agreement."[1] Although those conditions must be in conformance with state and federal laws, there are no limitations or restrictions as to what may be placed in the rental or lease agreement.

MHCO's rental and lease agreement forms[2] contain a number of criteria that landlords may impose, such as: (a) prior rental references; (b) unsatisfactory credit history or no credit history; (c) character references; (d) criminal history; (e) insufficient income to reasonably meet the monthly space rent and other expense obligations imposed by the rental or lease agreement; (f) the presence, number and size of pets; (g) age verification criteria if the park is a 55+ facility; (h) evidence of falsified or misleading material information; (i) refusal to sign a written lease or rental agreement; (j) additional occupants; and (k) adverse public record information.

Although there may be other criteria that landlords may wish to use when deciding whether to accept an applicant as a tenant, the above list is very comprehensive, and should be sufficient in imposing adequate guidelines when a tenant wishes to sell their home on site. MHCO additionally has an application form which solicits this and other information from prospective tenants.

Landlords and managers should become familiar with the criteria imposed in their rental agreements and rental application forms. Additionally, they should not rely upon the application information submitted to them without a thorough background check that provides the necessary verification. Although Oregon law imposes a 7-day period within which landlords have to respond to a submitted application, it does not prohibit landlords from imposing a longer period so long as the applicant agrees. Additionally, Oregon law expressly states that the 7-day period does not commence if the application is incomplete or inaccurate. Accordingly, landlords and managers would be wise to immediately return any submitted application if it is incomplete - and upon discovering that the prospective tenant/purchaser provided inaccurate information, the application should also be returned. Accepting an incomplete application or continuing with the process after discovering that the applicant has provided bad information can result in an argument by the existing tenant or the new applicant that the landlord is intentionally delaying the process.

It is also important to note that Oregon law permits the '_landlord and the prospective purchaser (to) agree to a longer time period for the landlord to evaluate the prospective purchaser's application or to allow the prospective purchaser to address any failure to meet the landlord's screening or admission criteria." Thus, as noted on the MHCO Application form, there is a place for the landlord to insert a period longer than the statutory seven day period. If the landlord suspects any delay, either on the applicant's part or his own part, a longer period should be inserted. If the applicant rejects this extension, then the landlord can decide whether he wants to proceed to process the application at all.

Note: If a tenant has not previously given the landlord the 10 days' advance notice of intent to sell as required in ORS 90.680(4) (a), the landlord's seven day response time is extended to 10 days. But remember, in no instances does the landlord have to receipt and process an inaccurate or incomplete application. It is better not to accept a defective application - or return it immediately upon finding that it is inaccurate or incomplete, than continuing to process it.

If a landlord requires a prospective purchaser to submit an application for occupancy at the time that the landlord gives the prospective purchaser the application the landlord shall also give the prospective purchaser copies of the statement of policy, the rental agreement and the facility rules and regulations, including any conditions imposed on a subsequent sale. It is important to remember that the terms of these park document given to the prospective tenant need not be the same as those in the existing (i.e. selling) tenant's documents.[3]

Park Documents.

Landlords and managers should always remember that when they change one of the park documents, they may have to change others. This is because of two risks: (a) The failure to incorporate a change in the lease, say, into the Statement of Policy, and (b) An inconsistency between one or more of the park documents, such as the rental agreement and the rules. Rules can generally be changed in the middle of a tenancy, but rental agreements cannot. So landlords should remember to make sure their documents are all internally consistent.

Fair Housing Laws.

The state and federal fair housing laws are essentially - but not completely - the same. Landlords and managers should familiarize themselves with any special ordinances found in their city or county laws. However, Oregon law prohibits any form of discrimination in the sale or rental of housing when directed at the following protected classes: '_race, color, religion, sex, sexual orientation, national origin, marital status, familial status or source of income."[4] The easiest, best, and safest way to deal with the risk of a discrimination claim is to make all screening criteria facially neutral. Do not have rules which - even unintentionally - could have a negative impact on a member of a protected class.

In Oregon, most claims of discrimination relate to familial status. Examples range from managers encouraging families to purchase and reside in one particular area of the community (where there are more children), to making off-hand comments to applicants (e.g. "there would be very few children for your kids to play with here") that may be construed as indicating a desire not to rent to people with children. For this reason, landlords and managers should strive to apply their screening criteria neutrally regardless of the applicant's membership in a protected class.

Additionally, caution should be exercised in answering questions over the phone, since federal and state "testers" have been known to test parks by making multiple phone calls asking various loaded questions, such as "Is this a good place to raise my children?" If the community is a family park, the best response to open-ended telephone inquiries is to tell the caller that it is a family park, open to all, and that they are welcome to come in and pick up an application for processing.

One of the biggest areas of concern for landlords and managers today involve issues of immigration status. At the risk of minimizing the problem, there is one basic rule that landlords and managers should always remember when screening applicants. While it is not a "silver bullet," it should help avoid the vast majority of issues regarding immigration status. Never treat any single applicant differently from another. This means that landlords should not automatically "suspect" that certain persons are illegally in this country and then impose more rigorous screening criteria on them alone. It is best not to ask about immigration status.[5] If the applicant passes the same screening criteria imposed upon others, and all of the information in their application checks out, you should accept the current applicant, regardless of whether you have suspicions about their immigration status. One of the frequently asked questions is whether a landlord may insist that applicants provide their social security number. While this is not automatically illegal, it can be when applied to some applicants and not others. Consistency is the name of the game. Do not request verification in some cases and not others. Do not accept some tenants who fail to provide the number, but accept others (who are not obviously immigrants) without also providing such proof.

Another area of concern is occupancy limits or extra occupancy charges.[6] This is somewhat of a grey area because Oregon law currently permits a two person per bedroom rule - assuming that it is expressly listed as part of the park's screening criteria and uniformly applied. However, the problem is that federal law contains no specific occupancy limits. This means that, in theory, one could be in compliance with state law, while violating federal law. For example, if a family consisted of two adults and three children who owned a 2-bedroom home, a "2-persons per bedroom" requirement would mean that they could not move into the park. But if the third child was an infant who slept in the parents' room, one may ask whether this standard is reasonable, even though it complies with Oregon law. At the risk of violating federal law, which imposes no such occupancy limits, the better approach might be to avoid the "slippery slope" problem entirely, by not creating occupancy limits.[7]

Perhaps the most difficult of screening criteria issues is in the area of assistance animals. Since handicap is a protected class, this means that if one could establish a legitimate need for an assistance animal they could not be prevented from having one - even though the park might have a one-pet policy and this might be their second pet. This could be so even though the animal was not trained or certified in providing assistance. MHCO has Form 15 that may be given to tenants applying for a "reasonable accommodation" which is the technical term used when an allegedly handicapped person requests relief from strict application of a rule that interferes with their handicapped. [8] As most landlords and managers know, the handicap protections can be severely stretched. There are many reasons for this, including, among other things, the handicap may be allegedly psychological, and the tenant has nothing more than a note from a doctor - not a treating psychologist or psychiatrist.

The other difficult issue is that assistant animals are not technically "pets" and therefore are not subject to the requirement that the Pet Agreement be completed. Ultimately it comes down to a rule of reason and proof. Does it appear that the person requesting the accommodation is legitimately handicapped? Do they have a known history of the handicap - that is, has it ever come up before? Does it appear that the claim of a handicap is new, and possibly raised as a pretext, say to circumvent a one-pet policy?

Ultimately, the issue comes down to public safety in the community. For example, if the tenant wanted to have a pit bull (in violation of a dangerous breed prohibition) or a bull-mastiff (in violation of a size restriction), the landlord should ask which battle he or she wants to fight? If the tenant isn't credible, has a history of skirting the rules on this or other issues, it might make sense to refuse and let them take the next step. If they bring the animal into the park in light of the denial, you will have a choice; either do nothing or send out a notice of violation which would require removal of the animal. The risk in allowing dangerous or oversized breed into the park is that it may harm someone, and then the landlord will have to defend a lawsuit for failing to enforce their own rules. Additionally, in consenting, the precedent has been set, now permitting such animals based upon a tenant's assertion the need it for assistance. Remember, "reasonable accommodations" need only be "reasonable." Dogs with vicious propensities or who pose danger to children because of their size, are not the only type of assistance animals available.

Marijuana cards raise the same issue, although perhaps even worse, since the cards seem to be freely given to almost anyone. In some cases, however, this too can be dealt with on another level. If the persons with medical marijuana cards have an inordinate amount of traffic at their home throughout the day and night, perhaps the issue is one for the police, since it is still illegal to sell or distribute marijuana, medical or otherwise. If they are dealing in the illegal drug, careful (documented) scrutiny of these comings and goings might prove useful.

Miscellaneous Screening and Application Issues

• Occasionally, tenants apply for occupancy even though they cannot afford to purchase the home on their own, and perhaps would not qualify under the financial criteria imposed for acceptance into the park. However, they may have a parent or other person willing to assist in the purchase and willing to guarantee the applicant's performance. There is nothing wrong with this approach, assuming that the guarantor passes all of the financial criteria the park would impose. First, remember that the guarantor will not be living in the home - they may have their own housing requirements that impose financial limitations on them. If the tenant defaults, can the guarantor actually afford to pay the space rent? Under such cases, the financial criteria applied to co-signers should be more rigorous than those imposed on tenant applicants. Secondly, landlords should be sure to have their attorney draft a solid guarantee agreement that gives them the right to seek payment against the guarantor without having to first evict the tenant. Third, before accepting a co-signer, a landlord should ask whether they have a sufficiently significant relationship with the applicant such that they will actually be willing to subsidize the space rent if it is not paid.

• A fundamental problem in the tenant screening process is the denial process. Landlords must be prompt in informing applicants if their application is denied. Obviously, a denial can provoke an angry response. Landlords need to be proactive. MHCO has two forms to address the issue, so that the landlord or manager does not have to engage in any more explanation than that provided in the form. MHCO Form 10, identifies the source of the material or information resulting in the turn down. That is all the landlord is required to do, unless it comes from a credit reporting agency. In that case, MHCO's Form 10A should be given so that applicant has the ability to know which credit company was involved and track down the source of the information.

• It is due to financial issues that many applicants get turned down. Especially today. For that reason, MHCO has developed the "Straight Talk" form, describing manufactured home living and affordability issues. It should be used in all cases, if possible.

• Although we discussed the Statement of Policy ("SOP") above, there are two additional points to be made: (a) Always be sure to obtain a receipt (MHCO Form 7C), since it is proof positive that the resident received the SOP and the Rules and Rental or Lease Agreement. Without the receipt, the tenant can deny receiving it, and the burden of proof to establish delivery is on the landlord. This can be a difficult task unless witnesses were present who can verify delivery. (b) The second item to note is use of the Rent History attachment to the SOP a copy of the Rent History (Form 7A). This permits the tenant to see the monthly base rent for each of the five years preceding the current year of tenancy.

• Perhaps one of the most important (and newest) forms if not used, is the Flood Plain Notice (MHCO Form 6). It notifies those residents whose homes are located in all or part of a 100-year floodplain. This means that landlords and/or their managers, should look at a current FEMA map to determine whether all or a portion of their park is located inside such a plain. If so, those residents whose spaces are in the floodplain should be notified. While technically, being located in a 100-year floodplain means that flood water levels are statistically expected to flood onto the plain once every 100 years, most people realize that over the course of 100 years, there could be three or more such floods or none at all. The MHCO form, in compliance with Oregon statute, suggests to those receiving the notice that they consider obtaining flood insurance. The good news is that once having given this notice, a landlord is not liable for any uninsured water loss suffered by the resident due to a flood; the bad news is that failing to give the notice can subject the landlord to the lesser of two months' rent or the resident's actual damages, whichever is less.

Conclusion

Landlords would have fewer tenant problems if they took more time during the screening process. This means resisting the temptation to fill a space quicker than the approval process actually takes. Unfortunately, the desire to have the rental flow commence quickly sometimes results in the process becoming rushed. And landlords and managers should never allow the applicant to rush them. Nor should they ever permit an applicant to move into a home before the process has been completed and a new rental agreement signed. Lastly, fairness and uniformity in screening will help to avoid the ever-present liability that can occur under the federal and state Fair Housing laws.

[1] Rental Agreement MHCO Form 5A and Lease Agreement Form 5B.

[2] Rental Application MHCO Form 1, and Application Screening Charge Notice and Receipt, MHCO Form 9.

[3] See, ORS 90.680(5)

[4] Source of income would refer to whether the applicant was receiving some form of state or federal assistance, or child support, for example.

[5] While compliance with the law seems like a reasonable area of inquiry, the problem is that managers and landlords don't ask this question of a family from England or Germany. This creates the appearance that questions regarding immigration status are reserved for Latinos or those from other Central American countries. National origin is a constitutionally protected class. As a result, this type of selective screening creates (in legal terms) a "disparate impact" on folks from Mexico and Central America, and can therefore be found to be a violation of the Fair Housing laws.

[6] Occupancy limits are sometimes used as "tools" by landlords to impose restrictions on persons with larger families, and therefore poses a potential violation of the familial status protected status. This has not been a significant problem Oregon.

[7] Generally, the only strong justification for occupancy limits in family parks is where it can be claimed that too many people in a home overtaxes the utility systems. While legitimate in some instances, proving it could be very costly.

[8] However, prudence should be exercised here. You would not ask an obviously blind person to fill out a request for reasonable accommodation when asking for a guide dog.

Answer: The Department of Revenue ("DOR") is treated like any other lienholder. It is critical that before the 45-day letter is sent, the park check with the Oregon Department of Consumer and Business Services ("DCBS") to determine if there are any lienholders on title. We understand that DOR is now showing up on the DCBS records. Remember, if they show up on the record and you fail to give them notice, they could come back against the park for failing to notify them.

If they show up on the DCBS records, they should be copied on the 45-day letter, and given all of the same rights as other lienholders, e.g. entering into a one year storage agreement, paying the storage fees, selling the home, etc. Currently, it is our understanding the DOR does not sign and returned storage agreements.

If there is a purchase money lien on the property, it will be superior to the DOR and then it [the DOR] will only get payment if there is any equity from the sale. Since the property is worth more than $8,000, if there is no sale, it would go to auction. [Caveat: Even if the DOR doesn'trespond to the 45-day letter, they still must be notified of the upcoming auction, per the statute. Again, there could be liability to the DOR if they have a valid lien, got the 45-day letter, but weren'tinformed of the date and time of the auction.]

As a lienholder, the DOR is behind the park, in terms of payment of cost, and then the county tax collector [which presumably is current - thanks to the DOR]. Next, as a lienholder, the DOR would receive some payment. If there are any further proceeds, they would go to the tenant, and if the tenant cannot be located, then to the county fund.

If the landlord follows these procedures, there is no remaining liability to the DOR for and of the taxes paid under the program.

Answer: There seems to be some confusion on what facts determine giving the 30-day notices and which are appropriate for three strikes. Here is a brief primer:

Three Strikes: Pursuant to ORS 90.630(8), a landlord may terminate a space rental agreement for a manufactured dwelling or floating home if:

• The tenant has not paid the monthly rent prior to the eighth day of the month assuming rent is due on the first day of each month, and,
• A 72-hour notice is issued[1] in at least three of the preceding 12 months; and
• The landlord warns the tenant of the risk of a 30-day notice for termination with no right to correct the cause, upon the occurrence of a third nonpayment of rent termination notice within a 12-month period. This warning must be contained in at least two 72-hour notices that precede the third notice within the 12-month period (or in separate written notices that are given concurrently with, or a reasonable time after, each of the two preceding 72-hour notices); and
• The 30-day notice of termination must state facts sufficient to notify the tenant of the cause for termination of the tenancy which is given to the tenant concurrent with, or after the third or a subsequent nonpayment of rent termination notice.[2]

Take-Aways.

• The MHCO 72-hour Notice (Form No. 42) already contains the warning about a non-curable 30-day notice for three strikes, i.e. issuance of three 72-hour notices within the preceding twelve months. No separate warning needs to be given. All management needs to do is complete the form and identify whether it is the first, second, or third such notice.
• Note: The purpose of the 3-strikes statute is to discourage serial late-paying. The violation is not "cured" by paying the rent late after issuance of a 72-hour notice - in other words, it still counts toward issuance of a three strikes notice.
• The 30-day Notice for a 3-Strikes Violation (Form No. 43A) should be given together with the third 72-hour notice; if it is mailed it can be in the same envelope or another one simultaneously sent. Always get a Certificate of Mailing when mailing the letter. Do not wait in sending out the 30-day notice!
• The 30-day 3-strikes notices is not "cured" by payment of the late rent.
• Since there could potentially be a waiver argument if the landlord attempted to terminate for issuance of more than three 72-hour notices, it is recommended that if the tenant was issued more than three such notices within twelve months, the landlord select just three.
• Caveat: Each 72-hour notice must have been properly prepared. If one of them has been defectively prepared (e.g. wrong date, time, etc.) or incorrectly served (e.g. improper posting and mailing, etc.) it will not count towards the three strikes. For this reason, it is suggested that legal counsel closely review each 72-hour notice that is intended to become the basis of a 3-strikes eviction.

Thirty-Day Notices: Pursuant to ORS 90.630(1) - (7), a landlord may terminate a space rental agreement for a manufactured dwelling or floating home if a tenant:

• Violates a law or ordinance related to the tenant's conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740 (Tenant Obligations);
• Violates a rule or rental agreement provision related to the tenant's conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing;
• Is classified as a level three sex offender under ORS 163A.100 (3); Note that this violation is not curable, and the 30-day notice must so state; or
• Fails to pay a (i) Late charge pursuant to ORS 90.260; (ii) Fee pursuant to ORS 90.302; or (iii) Utility or service charge pursuant to ORS 90.534 or 90.536.
• Note that for violation regarding the physical condition of the home, a 30-day notice does not arise under ORS 90.630; rather ORS 90.632 applies. Do not get the two types of events confused. Use MHCO Form No. 55 is to be used for repair and deterioration issues under ORS 90.632, and Form No. 43 is to be used for all other curable 30 day notices arising under ORS 90.630.
• The 30-day notice must state facts sufficient to notify the tenant of the reasons for termination of the tenancy and state that the tenant may avoid termination by correcting the violation within the 30-day period.
• If substantially the same act or omission that constituted the prior violation recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days' written notice specifying the violation and the date of termination of the tenancy.
• Note that notwithstanding issuance of a 30-day notice, management may issue a notice for nonpayment of rent under ORS 90.394. Caution: If the last day of a 30-day notice of termination is on, say the 15th of the month, the landlord's 72-hour notice issued on the 8th day of that month should only demand rent up through the 15th. If the 72-hour notice demands rent covering the period after the 15th, it could invalidate the 30-day notice since it demands that the tenant pay rent for a period of time beyond the official end of the tenancy. There is also a risk of incorrectly calculating the number of days in the 72-hoour notice. For these reasons, I do not recommend issuance of a 72-hour notice while a 30-day notice is pending. And if the tenant voluntarily pays the rent while the notice is pending, I recommend immediately returning it, saying that the resident must first timely cure the default identified in the 30-day notice (assuming the default is curable).

[1] Or the fifth day of the rental period is a 144-day notice is used.

[2] I do not recommend waiting to issue the 30-day notice. It should be sent or delivered concurrently with the 3rd strike, i.e. the 3rd 72-hour notice.