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Answer: By way of refresher, ORS 90.630 pertains to curable maintenance/appearance violations relating to residents' spaces. However, if the violation relates to the physical condition of the home's exterior, ORS 90.632 applies, to address repair and/or remediation that can take more time to cure, either due to the weather, the amount or complexity of the work, or availability of qualified workers.

SB 277A, became law on June 14, 2017 ("Effective Date"), applies: (a) To rental agreements for fixed term tenancies - i.e. leases - entered into or renewed on or after the Effective Date; and, (b) To rental agreements for periodic tenancies - i.e. month-to-month tenancies - in effect on or after the Effective Date.

Both ORS 90.632 and the MHCO form (No. 55) provides that if the tenant performs the necessary repairs before the end of the compliance date, or extended compliance date, they have the right to give the landlord/manager a written notice that the issues have been corrected. There is no fixed time for management's response as to whether the repairs have been satisfactorily and timely performed; it is sufficient if it is within a reasonable time following the tenant's written notice. However, if a tenant gives this notice to management at least 14 days prior to the end of the completion deadline, or extended deadline, their failure to promptly respond is a defense to a landlord's termination of tenancy.

I am assuming the tenant gave you no such notice, otherwise, you would have responded that the color was too bright.

MHCO 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. As I said in an article last year on this form, '_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."

Is there a technical argument that since the requirement was not in the Form 55 Notice, that it is not effective? In other words, he complied with the Notice, but not the letter. As you said: "He did paint like we asked him, but it was not a color approved by management." I personally think such an argue is specious - assuming that the letter accompanied, or quickly followed the Notice.

But to the question whether you can proceed under the Notice, I don't think I would recommend that, because the Notice was complied with. Assuming you have some rule about pre-approval on painting in your rules, I would issue a 30-day notice.

If you do not have such a rule, you will likely have to tread lightly, as you may not be in a good position to declare a violation upon which to issue a termination notice. In other words, you should try to reach a compromise, which may result in some form of cost sharing. I'm sorry to reach this conclusion, but without the requirement of management approval somewhere (i.e. in the rules or the Form 55 Notice) you may find that it the tenant secures legal counsel, you options are limited.[1]

The cautionary tale here is to make sure that when issuing Form 55 Notice, you not only need to identify what the problem is, but all completely explain what is necessary to cure. Had the pre-approval requirement been set out in the Form, you would have at least had a reasonable argument of non-compliance. I say "reasonable" because there still remains an argument by the tenant that you are imposing a requirement (i.e. management pre-approval), that is not contained in the rules or rental agreement.

[1] There is an argument that the Letter was part of the Form 55 Notice, and therefore the tenant is in violation. However, unless one of them referred to this cross-reference, it is not a pitch I would try to make in court.

Industry experts on the panel noted that retaining people who are effective with coworkers and the public is an ongoing process. Periodic employment reviews and training programs are generally well received. Most people want to know how well they are doing and what needs to improve. Coaching by regional managers and outside consultants is critical to recognizing employment and operational issues and correcting them before they cause other problems.

Second "tip" is also simple and can be summarized in one word: Documentation. It is critical that your community have well prepared written rental agreements whether for a long-term or month-to-month tenancy. There are, of course, pros and cons to both forms of tenancy. Certainly, in a rent control jurisdiction, long-term leases are preferred. However, it is well understood that obtaining an economically viable long-term lease can be difficult in rent controlled communities because of the legislative constraints on tenant negotiations. To the extent a local jurisdiction has vacancy control it is critical to pay attention to those opportunities to offer suitable long-term lease agreements so that future rent increases are known by both the resident and the park.

Another form of documentation to consider is arbitration agreements. There are intense debates among lawyers, and even within the industry, about whether or not arbitration is a desirable means of conflict resolution. If arbitration is going to be pursued, however, it is critical that the arbitration agreements reference and be drafted in accordance with the Federal Arbitration Act. While the State of California has an arbitration statute, it is effectively useless in compelling arbitration in most circumstances in a mobilehome park context. Numerous appellate State court decisions, when deciding whether or not arbitration can be compelled under the state arbitration law, are uniform in declining to enforce landlord/tenant arbitration agreements.

Documentation also means due consideration of park rules. Park rules are the functional equivalent of covenants, conditions and restrictions created for residential developments such as condominiums and planned unit developments. California law requires that park/community rules be reasonable and that, of course, is key to any judicial enforcement. Park owners differ as to whether they prefer general rules or more detailed rules. Again, there are pros and cons to each. However, when it comes to enforcement, it is this writer's experience that more particular detailed rules are typically easier to enforce than a more vaguely worded general rule where "reasonable" discretion by the park's resident manager might be seen by a judge as being less objective or personal. The courts in California tend to err on the side of tenants and thus making sure documentation (Rules) are objectively reasonable can greatly aid in their enforcement.

Tip three is getting to know your customer/market. Understanding who wants to live in your park and why it is important to properly serve that segment of the public and the larger "neighborhood community".

Consistent with knowing your market and customer, is knowing your competition. A park's competition might be other manufactured housing communities or, possibly, nearby apartment complexes, duplexes and triplexes in the area. Knowing who is renting and at what price is critical to knowing if your park is offering all that it can at a competitive price.

A fourth issue noted by regional park managers is the need to conduct a thorough park assessment. Many of the larger owners in the industry have an annual reassessment of each community including what potential capital expenses and improvements might be required. An annual or semiannual assessment can be done in conjunction with a documented risk assessment and analysis. Reviewing a community's streets, curbs, gutters and any recreational amenities can help a community be prepared for accidents; weather cause events and the ever present potential for litigation. A proactive system of having maintenance logs and keeping records of what has been repaired, when, and by whom is critical in the event of a simple slip and fall accident or, more significantly, if a "failure to maintain" lawsuit is threatened. In California failure to maintain allegations are routinely made against many communities that, from all objective criteria, are well-maintained and are highly desirable places to live.

Capital improvement and risk analysis assessments also lead to insight as to how a community is evolving. Is there a plan for replacing or improving the current housing stock? To the extent the park has the ability to help renovate or replace older functionally obsolete housing is a plan being considered. In some areas of California, the options of potential closure or conversion to a resident owned community are worthy of discussion. In rent controlled communities it might be prudent to have park owned homes so as realize appropriate revenue from the park.

One final tip: manage your revenue properly. Successful park operations need to follow and have a well-defined timeframe and process for rent collections. How rents are collected, managed and deposited is critical to cash flow. An annual review of the community to understand whether reserved parking or storage facilities should be provided, for a fee, should be considered. A number of communities have added solar panels to parking areas that generate revenue and help offset electricity costs in the park. Whether or not the park accepts electronic payments and how it processes resident checks can be critical to cash management. Knowing when and where funds are spent is ultimately the reason that the investment is either successful or not.

Thanks to Mindy Parish from Hometown America and Tom Pacelli from J&H Management for their participation and insight as to how operations for community owners can be managed proactively and efficiently.

Bill Dahlin is a partner with the Southern California law firm of Hart King and a leader in the firm's Manufactured Housing Industry Practice Group. He can be reached at 714-432-8700, 714-619-7084 (direct dial) or bdahlin@hartkinglaw.com.

Answer: By your question, it appears that your community is not sub-metered. If it were, the owners of the home would likely recognize the problem and immediately and fix it.

In my experience when water is included as a part of the base rent, most owners really don't care, and don't check. But when the community institutes a sub-metering program, everyone becomes an overnight conservationist. Sub-metering is a win-win for everyone; the landlord saves money in not having to pay for wasted water, and the residents save in (a) controlling their own water bills, and (b) not having to suffer needless rent increases to recapture the cost of wasted water.

Now to your questions. Clearly, if water is visibly running out of the home, the tenants should be notified and told to fix the problem. They are responsible for their own homes.

As for the less obvious leaking problems, the only way to find out is to survey the tenants on the issue; e.g. do they hear the toilet leaking, for example.[1]Same question for faucets. Next, what about under the home? Has anyone checked lately? I have heard of management offering to do inspections under the home for free, as a part of instituting a submetering program.

But can you require residents take these proactive steps, especially hiring someone to inspect under the home. Except for the rules regarding the siting of home on a space, there are likely no regulations that mandate such action on an ongoing basis - at least if there is no present evidence of leaking. If there is evidence, ORS 90.740 can be relied upon to secure compliance, if nothing can be found in the rules or rental agreement:

90.740 Tenant obligations. A tenant shall:

(4)Except as provided by the rental agreement:

(a)Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;

(e)Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;

(f)Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

If the rules do not contain such a provision, consider amending them to add language to address the issue. Rule changes can be done in a fairly straightforward manner. See, ORS 90.610. Alternatively, even if submetering is not addressed in your rules, you can unilaterally add it to your rental agreements, as a "Plan B", if you are unsuccessful in implementing the necessary rules.

[1]From the City of Portland website here: "How to check for toilet leaks: Lift of the toilet tank lid. Place 1 dye tablet in the toilet tank. Do not flush. Wait 15 minutes (or more) without flushing. Check the water in the bowl of the tank. If color appears in the bowl, the toilet has a leak."

It is fairly common in litigation or disputes involving mobile home tenancies for title to a home to change hands, whether pursuant to a "warehouse lien" authorized by statute after an unlawful detainer (evictions) judgment is obtained against a defaulting tenant, or by reason of a settlement between the parties or a surrender of a home to the park by heirs of a deceased tenant. A park should always ensure that title is properly transferred from a current or former owner to the park pursuant to all applicable laws (e.g., Department of Housing and Community Development requirements in California). Failing to do so runs the risk of problems occurring later. For example, if the park places a new tenant in the newly purchased home, thinking that the park owns the unit but later finds out that it does not have title to the unit significant legal issues can arise. For example, would the park have authority or standing to evict without title? In a scenario where a home has not been transferred properly the park can ordinarily obtain good title by way of an Abandonment Petition (in California at least) if the home is unoccupied. However, by placing a tenant in a recently purchased home, the park could be denied this avenue of transferring title and may have to pay to relocate the new resident. In addition, there is no guarantee that the tenant will cooperate. At the very least a tenant will be very unhappy. Following through and making sure that the park has proper title can save this and other unforeseen headaches. Indeed, as just noted, an eviction might be impaired without proper title documents.

Mobile home residents are often unaware (or uncaring) of the legal problems they can cause a park owner by selling their mobile home without notifying or getting the approval of the park (as most parks require). Such individuals are also likely to fail to transfer title properly. When the new owner defaults on payment of the rent, the failure to transfer title properly can cause an eviction nightmare for the park. One example is having an individual, whose identity is wholly unknown to the park, insert himself or herself as a defendant in an unlawful detainer or (eviction) case even after the case is essentially completed and lockout is scheduled. This individual can claim that he or she is the owner of the mobile home (though not on title) and that park management knew or should have known that he or she was living there and that he or she should have been served with the notice to pay rent or quit. This happens notwithstanding that all legal documents were served on the unit itself, some addressed to "all occupants." If a judge allows this new "stranger" into the eviction lawsuit, further legal fees will be expended to resolve the situation.

Many parks have recreational vehicles (and other "motor vehicles" including boats and dune buggies) in addition to mobile homes, either as residences, for short term stays, or for long term storage. Parks should require and obtain all title and registration information before such vehicles are allowed to stay in the park. Some of these vehicles, for one reason or another, will be abandoned in the park. The law usually does not allow the park to simply discard these vehicles when they are thought to be abandoned. Obtaining court authority or other legal authority to discard or sell abandoned vehicles usually requires pieces of information about them such as the make, model, vehicle identification number and registered owner that are not readily apparent by physical inspection. Getting this kind of information up front can save all sorts of time and expense down the line, including trips to the Department of Motor Vehicles to obtain information. The sooner the park can rid itself of abandoned vehicles, the sooner the park can get back to the business of renting that space in exchange for rent.

The above situations illustrate just a few of the benefits of paying attention to the issue of title and registration. Park owners may not want to be in the business of concerning themselves with title to personal property within the park, but paying attention to title issues can save the park considerable time (and legal fees) in the future.

Bill Dahlin is a partner with the Southern California law firm of Hart King and a leader in the firm's Manufactured Housing Industry Practice Group. He can be reached at (714) 432-8700, (714) 619-7084 (direct dial) or bdahlin@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.

Answer: Making an accommodation like this without a writing is an invitation to problems. You can easily enter into an addendum to the Rental Agreement saying that "Rent will be paid by the 11thof the month, and late after the 15th"(i.e. 4 days per statute).

Under this scenario, a 72-hour Notice could issue no earlier than the 18th(seven days from first date rent is due, per statute). If the Rental Agreement provides that there will be a fine of $X for a bounced check and a late fee of $X, then you're OK to do so.

As to whether you created a problem for yourself by allowing the late payments, I would say "No" so long as you have it in writing. Without a writing there is too much chance for argument as to when rent is late and when a late fee can issue.

MHCO does not have a form for this, but could. I will check.

Lastly, to your question about insisting on a certified check or money order, I would like to see it in the Rules or Rental Agreement, so it is enforceable. If it is not in your rules, you can still tell the client that henceforth, he or she will have to pay the rent by certified check or money order, but you could not enforce it, if they refused.

The rule can simply say: "In the event a Resident's rent check bounces on more than one occasion within any twelve month period, all further payments for the following 12 months shall be paid by certified check or money order."

But this would have to be an amendment to your current rules, following ORS 90.610.

Let's start with the Baby Boomers vs. the Elderly. Senior citizens are now at the top of the heap in U.S. Census numbers. The Baby Boomers are now officially "seniors" as they started turning 65 in 2011. In fact, 10,000 people turn 65 every day! The 85 to 94 year-olds experienced the fastest growth between 2000 and 2010. The senior age group is now, for the first time, the largest in terms of size and percent of the population in the US. While the overall senior population has increased, there are major social and financial differences within the group. For example, the Baby Boomers were young adults during the 1960's and are therefore a more "free thinking" group than their parents, the 85-94 group. While the Baby Boomers generally are not cookie baking grandmothers, they still require specific attention to their needs. Socialization is a key component for any successful senior living community program, but Baby Boomers are not interested in Bingo. The Boomer generation is driven and "self' centered. They want control and believe in personal gratification. In contrast, the Elderly group is concerned about being a burden to their families and how long they will be able to maintain any independent living status. Boomers have the greatest percentage of wealth in our society, where the elderly group is amongst the poorest.

Senior Trends are definitive, and developers and builders need to get ahead of the trends seniors are demanding. Will the product we build today be desirable or outdated in 5, 10, 15 years? Why do we insist that seniors should live in small apartments with no dishwashers? Why do we expect seniors to dispose of all their possessions to live in one of our units with 600 square feet? My sister turned 55 last year, and if she were to move into a typical senior community, she would expect the amenities she has always had. Senior housing is not just for little old ladies anymore! The rules of the past may not apply to this new generation of seniors. Boomers have already shown signs of not following their predecessors in the products and services they desire. They will work longer (don't skimp on parking places) prefer to age in place (smart floor plans, upgraded interior appointments, green features), 89% of seniors are on-line at least once a day (think Wi-Fi, not computer classes), and desire more active retirement scenarios (think wine tasting rather than a quilting bee). For example, on site movie theatres, a concierge (not "activities director"), opportunities that reflect current social trends (golf, gardening, cooking, decorating), concerts with varied options, a technology driven entertainment center (think XBox, not shuffle board) are just some ideas of how to attract the new generation of seniors. Remember, "Oldies" are not just Frank Sinatra and Doris Day, but the Beatles and The Stones!

Financial IssuesWe are living a decade longer than our parent's generation due to healthy aging and increased access to healthcare. Although this would seem to be a welcome fact, there are many seniors who live with the very real threat of running out of financial resources to sustain this longevity. Nearly half a million elderly living alone in California cannot make ends meet. These seniors lack sufficient income to pay for a minimum level of housing, food, health care, transportation and other basic expenses. "As the economy wipes out retirement savings and destroys home equity, our parents and grandparents will find paying for a roof over their heads and affording basic necessities even more of a struggle", said Steven P. Wallace, Ph.D, Center of Human Policy Research. This research shows that elder economic insecurity is problematic in both more and less affluent counties. A majority of all single elders aged 75 or older are economically insecure. The numbers of affected seniors are likely to be even higher as the current recession deepens. So what do we do? It may be a reasonable accommodation to change the rent due date to allow for the changing dynamic with assistance payments. All resources should be explored in order to keep the senior in their housing with eviction as a last resort.

Mental Illness affects one out of every five seniors in America. Just a handful of significant mental health problems that may occur are delirium, dementia, depression, and schizophrenia. Older adults who suffer with mental health conditions often have very abnormal behavior and patterns that create a decreased capacity for them to function independently. In many cases, mental health problems in seniors are too often ignored by health care professionals and attributed to "old age". Traditionally, our culture does not show any type of respect or dignity for those suffering from mental health disease. As our population ages, this challenge will become more prevalent. Many of our residents relocated to California and left their families to pursue the "golden dream". This has left them alone in their elderly years, and they look at us to fill that role for them. Our roles as rental housing professionals will need to evolve into a position of being able to locate resources that can provide assistance to our aging residents. This is why partnering with various social service agencies is such a vital component to add to our amenities on senior communities.

So, how do we support the staff? I believe that there is a special place in property management heaven for our staff members that contribute to the success of our senior communities! We depend on these employees to provide customer service on a completely different level. The demands of the senior resident are wide and varied... ."why does that animal live here?" "I do not like the looks of my neighbor"; "She is looking at my husband?" "Why can't you take me to the store? '_.etc. Our responses must be kind but firm, and conversations must be conducted in terminology that seniors understand. Many seniors believe that the management of our communities have a greater responsibility to them - this makes sense if we keep in mind that they have owned their own homes for many years and probably had some resistance to moving into a "retirement home" that they may think is Assisted Living. Their sense of entitlement runs deep after so many years of being valued and contributing members of our society. Employees are challenged with understanding the perspective of the senior resident. We need to provide major support to these employees and provide continual education on how to interact with seniors. A little pampering and wide shoulders to cry on wouldn't hurt either!

Professionals in the senior housing industry provide a vital service that goes beyond housing. We provide care, comfort, and a sense of family to our residents. This population segment will only increase so as an industry we need to get ahead of the trends and prepare for the influx of senior residents that will come our way. Our senior consumer wants reasons to believe, not empty facts. They want an emotional connection that goes beyond the walls and floors. Will you be ready for them?

For more information on training topics, including newly developed curriculum devoted to Senior Housing, contact Angel Rogers at (909)725-2700 or angel@angelrogers.com

Answer: Wow! Too bad Jerry Springer no longer has a show. They could just fight it out in front of a live audience.

Surprisingly, there is a fairly straightforward answer. Under ORS 90.675(19) death triggers the abandonment statute. But before I get into that, understand that under the abandonment law, management has a duty of safekeeping for the home and the personal property. This means that management may - and in this case must - secure the home and its contents. So immediately upon issuing the 45-day letter, the locks can be changed, and access forbidden except by appointment, and by consensus. One sister should not be allowed to go in without the others being present. From that point forward, the statute doesn'tgive any guidance, so the rule of reason applies.

Here are my thoughts:

• Require that they first take an inventory of the contents; if they cannot agree upon a methodology, tell them to hire someone to do it. Until that happens, individual access should not be permitted.
• Once an inventory is taken, the executor would have responsibility to the court (if there is a probate) to provide it to the court.
• Without know when the will says, it's hard to know whether there are special bequests, etc., but this is why the sisters should not be allowed access to pick and choose what to remove.
• Your manager should not become a referee or a punching bag.
• In addition to issuing the 45-day abandonment letter, the estate is responsible to enter into a Storage Agreement that requires it to pay the monthly storage fees (i.e. equal to the monthly rent). This should get their attention, since the longer they fight, the longer it will be before the estate is settled and the home sold. Under the abandonment law, the landlord has a right to all of the accrued storage fees from the home sale proceeds.
• My thinking about the sisters who have received the No Trespassing notice, my suggestion is to tell them it will remain in force, unless they commit to following management's protocols for access.
• ORS0.675(21)(g) and (h) provide:

"If the [personal] representative or [designated] person violates the storage agreement, the landlord may terminate the agreement by giving at least 30 days' written notice to the representative or person stating facts sufficient to notify the representative or person of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the representative or person."

"Upon the failure of a representative or person to enter into a storage agreement as provided by this subsection or upon termination of an agreement, unless the parties otherwise agree or the representative or person has sold or removed the property, the landlord may sell or dispose of the property pursuant to this section without further notice to the representative or person."

Conclusion.Make sure that that no effort is made to sell the home without first having the purchaser qualified by Management. If the sisters cannot rationally resolve the issue, management has the right to simply proceed with the abandonment sale, and the law will determine how the proceeds are to be distributed.

Historically, it has been common knowledge that once signed by the landlord and tenant, a rental/lease agreement may not be amended unless all parties agree. However, over the years, as landlord-tenant legislation began to detail more and more rights and liabilities, the issue arose as to how changes in the law were to be applied, when they did not appear in the rental/lease agreement.

In summary, ORS 90.510(4) provides that a park rental or lease agreement may not be unilaterally amended except under the following circumstances:

a) Both parties agree; or

b) Certain specific statutes specifically allowunilateral amendment; or

c) Certain specific statutes automatically requirethat the rental/lease agreement is changed.

In the case of subsection (4)(b), ORS 90.510 specifically lists those statutes which allow a landlord to unilaterally impose a change in the rental/lease agreement. A common example is the submetering statutes. When they first came into effect, many - if not most - agreements did not specifically address the multiplicity of issues that would be effected, from removing certain utilities from base rent, to direct billing, to accessing a space to install and read the meters.

In the recent Court of Appeals case of Morat v.Sunset Village, LLC, the focus was on how ORS 90.510(4)(b) should be interpreted. The Court explained the issue in the opening of its opinion:

This case involves a conflict between a tenant and landlordaboutwhopaysthecostresultingfromafallentree in a manufactured dwelling park. At issue are a statute on trees in rented spaces (ORS 90.727), a statute on "unilateral amendment" of a rental agreement (ORS 90.510(4)), the terms of the parties' lease, and the trial court's award of attorney fees incurred in court-annexed arbitration. [1]

The Court found in favor of the plaintiff-tenant. Setting aside the fact that in trial, the tenant put on evidence that the prior landlord had always cleaned up tree limbs that littered spaces after a storm, the main issue was fairly straight forward: Does the unilateral amendment language of ORS 90.510(b) require the landlord to actually amend the rental/lease agreement (as argued by the tenant),or is it automatic under subsection (4)(c) which provides that "(c)ertain specific statutes automatically require that the rental/lease agreement is changed" (as argued by the landlord).[2]

The Court held that although ORS 90.510(4)(b) explicitly allows landlords to unilaterally amend the rental/lease agreements to allocate responsibility, the enumerated statutes (including hazard tree statute) are not automatically effective. That is, the rental/lease agreement actually has to be unilaterally amended. In other words, contrary to the position taken by the park owner in the above case, in order to gain the benefit of allocating responsibility between landlords and tenants for trees on a space, management was first required to affirmatively "unilaterally amend" the rental/lease agreement.

Although the Court did not get into specifics as how this is done, it is not difficult to comply, e.g. send to each tenant a single page amendment, stating that pursuant to ORS 90.510(4)(b), their rental/lease agreement is '_hereby amended to adopt ORS 90.727 Maintenance of Trees in Rented Spaces)." Either the statute should be quoted verbatim, or a copy attached to the unilateral amendment. And of course, the amendment should be included in each tenant's file.

So the take-away for MHP landlords is that if you want the protection/enforcement provisions of the following statutes (and your current rental/lease agreement does not already contain them), you should make a unilateral amendment:

- ORS 90.530 (Pets in facilities);

- ORS 90.533 (Conversion of billing method for garbage collection and disposal);

- ORS 90.537 (Conversion of billing method for utility or service charges);

- ORS 90.543 (Utility or service charge billing for large manufactured dwelling parks);

- 90.600 (Increases in rent);

- 90.725 (Landlord or agent access to rented space); and

- 90.727 (Maintenance of trees in rented spaces).

At the end of MHCO's rental and lease agreements, the following provision appears, which should serve as a prompt for all landlords to issue a unilateral amendment document to tenants when (a) permitted by Oregon law, and (b) the provision is not already contained in the rental/lease agreement:

TENANT understands and agrees that in the event of any changes in local, State or Federal laws affecting the parties' rights or remedies herein, LANDLORD, in LANDLORD'S sole discretion, may request that TENANT sign one or more written addenda expressly incorporating such changes into this Agreement. TENANT'S failure to sign such written addenda within ten (10) days of LANDLORD'S written request to do so shall constitute a breach of this Agreement. No such change shall be retroactively applied to any circumstance that occurred prior to the date such new law became effective. Notwithstanding the preceding, LANDLORD shall have no duty to amend, alter or adjust this Agreement due to any laws or ordinances enacted after the Commencement Date, regarding Rent, Rent control, Rent adjustment, or any other limitation, restriction or provision affecting or limiting the amount of Rent LANDLORD may charge for this Space. TENANT(S) Initials): _______ _______

It appears the rental or lease agreement at issue in the above-referenced case did not contain such a reminder.

[1]The following discussion does not address whether ORS 90.727 applies to fallen trees.

[2]Query: If subsection (c) automaticallyapplied to trees on tenant spaces, why was subsection (b) necessary? In other words, it would seem that (b) would not need to have been included in ORS 90.510(4).

Answer: Interestingly, the current submetering statutes do not have a protocol dealing solely with passing through utilities for common area, separately from that for spaces. In other words, at the time of submetering the spaces, you could do it using the prorate method you describe, in which case it would be preceded by a 180-day notice. See, ORS 90.537. It provides:

A landlord that converts to a submeter billing method under this section from the rent billing method described in ORS 90.532 (Billing methods for utility or service charges) (1)(b)(C)(i) may unilaterally, and at the same time as the conversion to submeters, convert the billing for common areas to the pro rata billing method described in ORS 90.532 (1)(b)(C)(ii) (Billing methods for utility or service charges) by including the change in the notice required by subsection (1) of this section.

However, the balance of this subsection provides that "(i)f the landlord continues to use the rent billing method for common areas, the landlord may offset against the rent reduction [that was a part of the pass-through conversion] an amount that reflects the cost of serving the common areas."

If your utility or service provider cannot provide an accurate cost for the service to the common areas, this subsection allow you to "...assume the cost of serving the common areas to be 20 percent of the total cost billed. However, this offset is not available if you choose to bill for the common areas using the pro rata method.

Your question raises the issue whether you may now convert the common area costs from the base rent to submetering. Here are your choices as I see them, keeping in mind you should vet this issue with your own lawyer:

• Convert to submetering solely for the common area, following the same protocol as you did at the time of converting the spaces. However, this will require you to know with some certainty the actual cost of sewer and water to the common areas. However, this approach is not expressly described in the statutes.
• Forego submetering - as you have done - and check with your utility provider to see if you can obtain an accurate cost for the common area service, and follow the same rent reduction and notice protocol under ORS 90.537, as if you were converting to submeters. If so, you could use the prorate apportionment as you propose. This would also require a "unilateral amendment" of the rental agreements. The only legal objection to this would be that it was not at the same time you converted the spaces to submetering.
• If your provider cannot provide an accurate cost, you could make the 20% offset assumption against the rent reduction taken when you first converted to submetering the spaces. You would follow the same unilateral amendment, and 180-day notice as the alternative above. I acknowledge that this offset is subject to distortion, since the 20% is against a rent reduction in the past. There may be an equitable way to arrive at a figure, but it would likely require some consensus of the residents.

Caveat: All of these protocols are based upon following ORS 90.537(5) as if they were occurring at the time of submetering the spaces. Since the statute does not expressly address common area conversion separate from the process when converting to submeters for the space, there is always the argument that it simply is not permitted. That is why I think you will need tenant buy-in. Or you could do it through a rule change, which would likely be safer than a "unilateral amendment". Again, be sure to address this with your own legal counsel. The above discussion should not be treated as legal advice.

Answer: First, I must ask what is the reason for photos of tenants and occupants? I suspect there may be a legitimate reason, but if you cannot explain it (other than "we've always done it that way") you might consider discontinuing the practice. I do agree that it is premature to get pictures of prospective tenants, etc., until they have been accepted as tenants. Thereafter, if there is a legitimate reason for the information, you make take the pictures. A photograph consensually given, is not, in my opinion, illegal if it serves a legitimate business purpose.

Second, assuming there is a legitimate reason, my concern would be what happens to the photos thereafter. You might want to consider scanning and keeping the personal photographic information in a secure electronic storage, away from the risk of indiscriminate access.

This same advice applies to any confidential consumer information (e.g. social security numbers) - keep it safely stored, as you could be held liable for the theft or abuse of this information. When the tenancy has ended, photos and personal information should be destroyed.