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Answer: Not in my opinion. The temporary occupant agreement concept is that the person is not going to be a “co-renter”. They are being permitted to come onto the space as an accommodation by the landlord to the current resident who wants them there. If they are to become a temporary occupant, but your background check inadvertently reveals derogatory references related to financial information, and that concerns you, then limit the amount of time they can remain there, and take things a month, or six months, at a time. You might consider having tenants fill out a form in advance explaining exactly why they want the temporary occupant there. If a tenant wants them there to share the rental obligation then you should know that before offering the temporary occupant status. If that is the case, then have them apply as a tenant. If they don’t pass the financial background check, then reject them on that basis.

Question: The temporary occupancy agreement states that the temporary occupant must comply with the laws/Rules Regulations & Policies of the community. Who is responsible to provide this information to the temporary occupant and when should it be given?

Answer: I understand that the temporary occupant law does not specifically address this point. But you have the most to lose if the rules are not given to them at the outset of the temporary occupant relationship. That being the case, I would suggest you append the rules to the temporary occupant agreement, and have them sign both the agreement and the attached rules. Then there is no question about whether they got them.

Question: The temporary occupant agreement and the law state that a temporary occupant can be terminated “for cause” if there is a material violation of the occupancy agreement and that the temporary occupant does not have a right to cure the violation. The other option is termination by automatic expiration of the agreement (if the box is checked that specifies this). If the landlord needs to issue a for cause termination (instead of termination by automatic expiration) the termination must be done in accordance with the law outlined in ORS 90.392 (for non-MHP tenancies) or 90.630 (for MHP tenancies). However after reading these statutes, they do not give an option for the landlord to issue a for cause notice with no right to cure. How is a landlord supposed to issue a for cause termination notice with no right to cure and have it held up in court? If a landlord issues a for cause notice with no right to cure, what form should be used and what is the time frame for the termination?

Answer: The temporary occupant law is addressed in ORS 90.275. You may terminate the temporary occupant for a material violation of the temporary occupancy agreement. That agreement also terminates by its own terms when it expires (if you checked that box on the form). The law says that upon termination or expiration, the temporary occupant shall “promptly vacate.” If they don’t, then the landlord can issue a for cause termination under 90.630 (for MHP tenancies) to the tenant – not the temporary occupant. That means you would issue a termination notice under 90.630 for the tenant to vacate if the temporary occupant failed to do so as required. The opportunity to cure is for the tenant to get the temporary occupant to vacate. If they temporary occupant fails to vacate within the 30-day cure period given by law to the tenant, then the entire space tenancy is terminated. In such case, the law says the temporary occupant – if they remain – is treated as a “squatter.” ORS 90.403 then permits you to give a 24-hour non-curable termination notice to the “squatter” and evict, if necessary, through the normal FED process.

Answer: This is a new one. The Oregon landlord tenant law does not expressly address this specific issue. The closest it comes are the following laws:

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

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

(2) The landlord shall allow the tenant to place political signs on or in a manufactured dwelling or floating home owned by the tenant or the space rented by the tenant. The size of the signs and the length of time for which the signs may be displayed are subject to the reasonable rules of the landlord. (Emphasis added.)

2. 90.750 Right to assemble or canvass in facility; limitations. No provision contained in any bylaw, rental agreement, regulation or rule pertaining to a facility shall:

(1) Infringe upon the right of persons who rent spaces in a facility to peaceably assemble in an open public meeting for any lawful purpose, at reasonable times and in a reasonable manner, in the common areas or recreational areas of the facility. Reasonable times shall include daily the hours between 8 a.m. and 10 p.m.

(2) Infringe upon the right of persons who rent spaces in a facility to communicate or assemble among themselves, at reasonable times and in a reasonable manner, for the purpose of discussing any matter, including but not limited to any matter relating to the facility or manufactured dwelling or floating home living. The discussions may be held in the common areas or recreational areas of the facility, including halls or centers, or any resident’s dwelling unit or floating home. The landlord of a facility, however, may enforce reasonable rules and regulations including but not limited to place, scheduling, occupancy densities and utilities.

(3) Prohibit any person who rents a space for a manufactured dwelling or floating home from canvassing other persons in the same facility for purposes described in this section. As used in this subsection, “canvassing” includes door-to-door contact, an oral or written request, the distribution, the circulation, the posting or the publication of a notice or newsletter or a general announcement or any other matter relevant to the membership of a tenants’ association.

(4) This section is not intended to require a landlord to permit any person to solicit money, except that a tenants’ association member, whether or not a tenant of the facility, may personally collect delinquent dues owed by an existing member of a tenants’ association.

(5) This section is not intended to require a landlord to permit any person to disregard a tenant’s request not to be canvassed. (Emphasis added.)

3. 90.740 Tenant obligations. A tenant shall:

(3) Behave, and require persons on the premises with the consent of the tenant to behave, in compliance with the rental agreement and with any laws or ordinances that relate to the tenant’s behavior as a tenant.

(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;

(i) Behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors. (Emphasis added.)

So, you see, this simply isn’t addressed in the landlord-tenant law. Nor should it be. Clearly, the resident leaving the religious material in the clubhouse could, if he or she wanted, go door to door proselytizing, unless and until others complained. If the materials are left anonymously, without more than a single resident being offended, I’m not sure what the landlord could or should do. Remove and destroy the materials?

If the landlord knows who is doing this, perhaps a personal discussion with them might be in order. But telling them to “stop” because a single person is offended seems unnecessary. If there is a place in the clubhouse for storage of reading materials, perhaps removing the literature to that location would work. Certainly, no rule change prohibiting placement of materials in the clubhouse (just because they are religious) is unnecessary. Management cannot be responsible for controlling the placement of written materials in the clubhouse unless it is offensive, inappropriate for minors and guests. This is what free speech is all about. My view would be the same regardless of the denomination of the literature. If I’m incorrect, I’m sure I will hear about it.

Answer: The Oregon landlord-tenant law does not “require” that a landlord accept partial payments. To the contrary, it provides that it is a “tenant’s duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement….”

A landlord may refuse to accept the tender of partial rent of rent that is not paid on time. However, if the landlord agrees to accept a partial payment of rent he/she may do so, although it should be clearly described in a well-drafted written agreement.

Such partial payments do not constitute a waiver of the right to later demand prompt performance in the future. Nor do they prevent the landlord from terminating the tenancy if the balance of the rent is not paid as agreed.

However, there are some pitfalls that the landlord must be aware of: Acceptance of a partial payment waives the right of termination if accepted after issuance of a 72-hour or 144-hour notice of termination.

When presented with a partial payment issue, landlords are wise to closely review ORS 90.417. Lastly, consistent application is important – i.e. if the landlord has permitted partial payments by some residents, he/she would be hard-pressed to disallow others the right to do so without good reason. Here are a summary of how ORS 90.417 applies to this case:

• A tenant’s duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement.

• A landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely.

• A landlord may accept a partial payment of rent. Doing so does not constitute a waiver, if properly documented. Here is what the landlord must do to avoid waiver: o The partial payment must have been made before the landlord issued a 72-hour or 144-hour notice for nonpayment. o The landlord must enter into a written agreement with the tenant stating that the acceptance does not constitute waiver.

o The agreement should provide that the landlord may terminate the rental agreement and take possession as provided in the Oregon FED laws if the tenant fails to pay the balance of the rent by a time certain.

o The tenant must agree in writing to pay the balance by a date/time certain.

• If the balance is not paid according to this written agreement, the landlord may serve a 72-hour or 144-hour nonpayment of rent notice – but it must be served no earlier than would have been permitted under the rental agreement and the law, had no rent been accepted.

• Notwithstanding a landlord’s acceptance of a partial payment of rent, the tenant continues to owe the landlord the unpaid balance of the rent. In other words, acceptance of partial rent does not eliminate the duty to pay the balance.

Answer: All good questions. The entire statute, which is lengthy, is found at ORS 90.675. (a) Can a landlord acquire a home that is in abandonment? Yes. Assuming that the abandonment process has been formally commenced, the landlord would have to wait for the 45 day period to expire and then if the property was over $8,000, it would have to be advertised and sold via sealed bid. The landlord can bid, but must make sure that the bid is high enough that it’s not going to be snapped up by another higher bid. If the property is worth $8,000 or less, the landlord could dismantle or give away to a non-profit organization. But if the landlord wanted the home, he would have to advertise and auction and then pay the property taxes and could acquire it. (b) Can he or she bid during the sealed bid process? Yes, as mentioned above. However, sealed bids mean sealed bids – no free peek by the landlord, so he knows how much to make his bid for. The playing field must be level. (c) If no one bids on the house can the landlord purchase it and at what price? Generally this should not come up, since the landlord would normally put in his own “protective bid” which is just a credit bid and represents the amount of costs and fees he’s got into the abandonment process. Thus, if no one else were to bid, the landlord would acquire it for the “protective bid.” The above discussion does not factor in what happens if there is a lender. If there is, then the entire time frame is subject to what the lender does. If it signs and returns the Storage Agreement, then the lender will have the right to try to sell the property itself. However, if the lender does not sign and return the Storage Agreement, or otherwise fails to respond to the landlord, then its interest is “conclusively presumed to be abandoned.” Note, however, that when the home is advertised prior to the private auction, the invitation to bid submitted to the newspaper for publishing must also be provided to the lender – even though it didn’t respond to the original 45-day notice. This is sometimes forgotten, since landlords assume that if the lender didn’t respond or timely exercise their right to sell the property, they don’t have a right to know when the auction is held. They do have the right to know, and the right to bid. Forgetting this can create headaches for landlords after they have sold the property to someone else.

Answer: The statute governing the issuance of a 24-hour notice is ORS 90.396 [Acts or omissions justifying termination 24 hours after notice.] Subsection (1)(f) states that a 24-hour notice may be appropriate in the following circumstances:

The tenant, someone in the tenant’s control or the tenant’s pet commits any act that is outrageous in the extreme, on the premises or in the immediate vicinity of the premises. For purposes of this paragraph, an act is outrageous in the extreme if the act is not described in paragraphs (a) to (e) of this subsection, but is similar in degree and is one that a reasonable person in that community would consider to be so offensive as to warrant termination of the tenancy within 24 hours, considering the seriousness of the act or the risk to others. An act that is outrageous in the extreme is more extreme or serious than an act that warrants a 30-day termination under ORS 90.392. [Emphasis mine.]

Unfortunately, in close cases, what is “outrageous” is frequently in the eyes of the beholder. The question is was this truly an isolated incident for which you could give a 30-day notice that he could cure by simply not repeated within the following 30 days? If he repeated it thereafter [i.e. within 6 months following the date of the 30-day notice] you could terminate with a 20-day, non-curable, notice.

In making a decision whether to do a 24-hour notice, which is non-curable, or a 30-day notice which is, you should consider the following factors:

1. Has this ever occurred before?

2. How long has the resident been in the park?

3. Is there a reason to believe the conduct will be repeated?

4. Does the resident have a drinking/emotional problem on a regular basis?

5. Did the conduct pose any immediate threat to health or safety?

6. Was actual violence involved?

If you genuinely believe that a 30-day notice would work, it will still provide you with the opportunity to issue a 20-day non-curable notice if he fell off the wagon again - either within the 30 days or within 180 days following the date of issuance of the 30 day notice. Remember that the 24-hour notice is final, whereas the 30-day notice is not, because it can be “cured.” This may be a case where you should issue the 30-day notice, and make it clear to him that the next time will be final. In any event, the conduct should not be ignored – a notice should issue.

Answer: The answer would be the same regardless of whether it is a family park or a 55+ park. This is an issue of making a “reasonable accommodation” under the federal fair housing act. Handicapped persons are members of a protected class. Is the resident “handicapped”? With the various infirmities that can come with older age, there is a likelihood that the resident could qualify as a member of that class. If so, then the landlord should give the tenant a MHCO Request for Reasonable Accommodation form. If everything checks out, granting a “reasonable accommodation” to the community’s minimum age requirement for a second person in a senior park from 45 to 38 is probably not unreasonable. It will not cost the landlord anything. It will not set a “precedent” since federal law requires such concessions for handicapped. All in all, it is a fairly easy solution. Note that I am not commenting on the validity of the request itself. This accommodation is not costly or risky, so the analysis is fairly simple. The harder cases are where the resident wants to bring in a pit bull or other breed with a dangerous reputation; as an “assistance animal,” or the assistance provider, while a relative, has a recent criminal record for violence. If these cases, the landlord has to evaluate the legitimacy of the request, the need to accommodate a “pit bull” or ex-con, versus some other alternative, and the likelihood the resident will contest an outright denial. In this case, I have no problem with having the son fill out an informational form containing contact information, background information and a criminal check. However, since he is not applying for residency, his financial qualifications are irrelevant, since he is there to lend assistance, not pay rent.

Answer: The answer is found in ORS 90.302 (Fees allowed for certain landlord expenses). What follows is a brief summary: (1) A landlord may not charge a fee at the beginning of the tenancy for an anticipated expense (i.e. one that has not actually occurred). (2) A landlord may not require the payment of any fee except as provided in this statute. (3) The specific fee must be described in a written rental agreement. (4) The following list are the fees a landlord may charge: a. A late rent payment, pursuant to ORS 90.260. b. A dishonored check, pursuant to ORS 30.701 (5). [Note that the amount of the fee may not exceed the amount described in ORS 30.701 (5) plus any amount that a bank has charged the landlord for processing the dishonored check.] c. Removal or tampering with a properly functioning smoke alarm, smoke detector or carbon monoxide alarm, as provided in ORS 90.325 (2). d. The violation of a written pet agreement or rule relating to pets in a facility, pursuant to ORS 90.530. e. The abandonment or relinquishment of a home during a fixed term tenancy without cause. [Note that the fee may not exceed one and one-half times the monthly rent. A landlord may not assess a fee under this section if the abandonment or relinquishment is pursuant to ORS 90.453 (2) (Termination of tenant who is victim of domestic violence), ORS 90.472 (Termination of tenant who is called to active state service) or ORS 90.475. (Termination of tenant sue to service with Armed Forces)] f. If the landlord assesses a fee under (e) above: i. The landlord may not recover unpaid rent for any period of the fixed term tenancy beyond the date that the landlord knew or reasonably should have known of the abandonment or relinquishment; ii. The landlord may not recover damages related to the cost of renting the dwelling unit to a new tenant; and iii. ORS 90.410 (3) (Effect of tenant failure to give notice of absence) does not apply to the abandonment or relinquishment. (5) Noncompliance with written rules or policies. [Note that the fee may not exceed $50.] (6) A fee may be assessed under paragraph (5), above, only for the following types of noncompliance: a. The late payment of a utility or service charge that the tenant owes the landlord as described in ORS 90.315. b. Failure to clean up pet waste from the tenant’s space other than the home itself. c. Failure to clean up garbage, rubbish and other waste from the tenant’s space other than the home itself. d. Parking violations. e. The improper use of vehicles within the premises. (7) A landlord is not required to account to a tenant for, or return to, the tenant any fee. (8) Except where the tenant abandons or relinquishes the space during a fixed term tenancy [see (4) e above], a landlord may not charge a tenant any form of liquidated damages, however designated. (9) Nonpayment of a fee is not grounds for termination of a rental agreement for nonpayment of rent - but is grounds for termination of a rental agreement for cause. (10) The above laws regarding fines do not apply to: a. Attorney fees; b. Applicant screening charges; or c. Charges for improvements or other actions that are requested by the tenant and are not required of the landlord by the rental agreement or by law.

Answer: If the tenant has left the home, this does not mean that the landlord’s non-payment of rent notices must follow the tenant around the country in order to be effective. Rather, in cases where the tenant apparently abandons the home (or at least is ignoring his/her space rent responsibilities while gone), the landlord should send the 72-hour notice to the tenant at the tenant’s space. If the tenant has another address known to the landlord, he an send a “courtesy copy” so marked, with an advisory that the original was sent to the space. Upon expiration of the 72 hours without payment, the landlord may file for eviction. If the tenant does not show up at the first appearance, the landlord may obtain a judgment of restitution and recover back possession of the space. Then the landlord may send out a 45-day abandonment letter. A Certificate of Mailing (this is not “certified mail”) is always useful when sending notices, and certainly appropriate here.

Answer: Be aware that utility charges, late fees, etc. are not “rent.” Rent is the charge for the resident’s right to remain at the space. As you know from the MHCO 72-hour Notice, the right to evict only arises when the rent remains unpaid for seven days following the date of payment, which is usually the first of the month. The extra charges for late fees, utilities, and other expenses the landlord has a right to collect under the rental or lease agreement do not provide the basis for eviction under the 72-hour Notice. A landlord’s right to terminate a tenancy for payment of non-rent charges can be handled in two ways: (a) By issuance of a 30-day notice of termination; or (b) Small Claims Court. If the resident’s payment does not include 100% of the rent that is due, that is a different story. In that case, the landlord does not have to accept partial rent. However, if a landlord is willing to do so, he/she must secure a written agreement. Here’s what ORS 90.417 says: • A landlord may accept a partial payment of rent. • If the acceptance of a partial payment of rent is in accordance with the following protocol, it does not constitute a waiver of the landlord’s right to terminate the tenancy for nonpayment of the balance of the rent owed. • Here is the required protocol: Acceptance of a partial payment of rent waives the right of the landlord to terminate the tenant’s rental agreement for nonpayment of rent unless: o The landlord accepted the partial payment of rent before he/she gave a nonpayment of rent notice based on the tenant’s agreement to pay the balance by a time certain and the tenant does not pay the balance of the rent as agreed; o The landlord’s 72-hour notice must be served no earlier than it would have been permitted under the 72-hour notice statute, had no rent been accepted; and o The notice permits the tenant to avoid termination of the tenancy for nonpayment of rent by paying the balance within 72 hours or 144 hours, as the case may be, or by any date to which the parties agreed, whichever is later; or o The landlord accepted a partial payment of rent after giving a nonpayment of rent termination notice and entered into a written agreement with the tenant that the acceptance does not constitute waiver. The written agreement may provide that the landlord may terminate the rental agreement and file for eviction without serving a new 72-hour notice if the tenant fails to pay the balance of the rent by a time certain. • Note that a landlord and tenant may by written agreement provide that monthly rent can be paid in regular installments of less than a month pursuant to a schedule specified in the agreement. Such installment rent payments are not partial payment of rent under ORS 90.417.

Answer: You must have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical. Generally, communities strive to be over 80%, since falling below 80% occupancy [even upon death of a qualifying 55+ resident] means immediate disqualification. Does this mean that your 15% safety margin must be reserved for families with children? The answer is “No.” In fact, a 55+ community should strive for 100% occupancy by persons age 55 or over. Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age? Again, the answer is “No.” If desired, a 55+ community may impose a minimum age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years. However, it is also important for you to publish and adhere to policies and procedures that demonstrate an intent to operate as a 55+ community. This requirement is fairly self-explanatory; i.e. you should make sure that in all advertising, rules, rental agreements, and policies, you always hold the community out as a 55+ facility. Lastly, you must comply with HUD’s age verification of occupancy procedures to substantiate compliance with the requirement that at least 80% of the community is intended to be occupied by at least one person age 55 or over. The law provides that the following documents are considered reliable for such verification: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.