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APPLICATION OF PORTLAND’S NEW TENANT ORDINANCES

TO MANUFACTURED HOUSING COMMUNITIES

By

Phillip C. Querin, MHCO Legal Counsel

July 1, 2019

Discussion: The Portland Ordinance, 30.01.085 (“Portland Renter Additional Protections”) here, has identified the occurrence of certain events that now require landlords to pay Relocation Assistance (“RA”) to tenants. 

[Reference below to the “Ordinance” will refer to 30.01.085; references to the state law, ORS Chapter 90, will be referred to as the “Act”; and references to the new state law governing rent increases, will be referred to as “SB 680”.]  

The Ordinance applies to all rented Dwelling Units[1]within Portland’s city limits, whether they are managed by an owner, a sublessor, or property management company.  However, not all properties that list Portland as their mailing address are located within the city limits. 

“Portland Maps”is the official city site used to determine properties subject to the RA policy. See, https://www.portlandmaps.com/. To verify the location of a rental property, click on the Portland Maps link and enter the property address. Once it appears, there are related several links, one of which is “Jurisdiction”. If the Jurisdiction link states "Portland," the rental property is subject to the mandatory RA policy, unless otherwise exempted, as discussed below.

EVENTS TRIGGERING RELOCATION ASSISTANCE

1. No-Cause Eviction
   1. Landlord must pay Relocation Assistance (“RA”) to Tenant at least 45 days before termination of the tenancy
2. Increase of 10% or more in Rent or “Associated Housing Costs”[2]
   1. Tenant must give written notification to Landlord requesting RA within 45 days of Rent Increase Notice
      1. Landlord must pay RA within 31 days of Tenant’s request for RA
3. Substantial Change of Lease Terms
   1. Tenant must give written notification to Landlord requesting RA within 45 days of substantial change
      1. Landlord must pay RA within 31 days of Tenant’s request for RA
4. Non-Renewal of Lease
   1. Landlord must pay RA to Tenant at least 45 days before termination of the tenancy

Note:  With the exception of No. 2 (Rent increases of 10% or more) and No. 3 (Substantial Change of Lease Terms) the two remaining events do notrequire the tenant to make a written request for RA. Payment is simply expected to occur within the required time from the triggering event. 

AMOUNT OF RELOCATION ASSISTANCE

1. $2,900 for a studio or single room occupancy (“SRO”) Dwelling Unit
2. $3,300 for a one-bedroom Dwelling Unit
3. $4,200 for a two-bedroom Dwelling Unit 
4. $4,500 for a three-bedroom or larger Dwelling Unit. 

Note:The only time RA will be payable by a landlord in a manufactured housing community is if they are the owner of (a)a manufactured home or (b)an RV that is being rented out. Presumably, the amount of the RA would be based upon whether it is an SRO or a 1, 2, or 3-bedroom unit. 

Note:  If a Landlord is paying RA required under the Act, and Relocation Assistance is alsorequired by the Ordinance for the same Termination Notice, the Relocation Assistance required by the Ordinance may be reduced by the relocation assistance required by the Act if both payments are paid at the same time and as a single payment.[3]

TENANT’S RECEIPT OF RELOCATION ASSISTANCE AFTER RENT INCREASE OF 10% OR MORE

1. Following receipt of the RA, the tenant has 6 monthsfrom the date of the increase to either: 
   1. Pay it back, and thereafter become obligated to pay the increased rent in accordance with notice of increase; or 
   2. Provide the landlord with a notice to terminate the rental agreement in accordance with the Act.  

1. In the event the tenant fails to pay the RA back to the landlord or provided the landlord with the termination notice on or before the expiration of the six-month relocation period, the tenant will be in violation of the ordinance.

Note:A violation of any law or ordinance is also breach under the MHCO rental agreement or lease, for which landlord may issue a 30-day curable notice under ORS 90.630. Accordingly, it appears this would be one method of commencing recovery of the RA should the tenant fail to terminate and repay the RA. The other would be to file a claim in the county Small Claims Court.

Note:The other three triggering events for RA assume the tenancy is terminated, so tenant has no option to accept or reject the landlord’s action - therefore no repayment issue. However, in the event of a substantial change in the lease terms, it would seem possible that the landlord and tenant might  reach agreement to continue the lease under the amended terms, in which case, the tenant would be required to return the RA, just the same as a rent increase of 10% or more.

EXEMPTIONS FROM PAYING RELOCATION ASSISTANCE

Relocation Assistance does not apply to the following, so long as the Landlord has submitted a required exemption application form to Portland Housing Bureau for which it has issued an exemption acknowledgement letter, a copy of which the Landlord must be provided to the Tenant:

1. Rental agreement for week-to-week tenancies; 
2. Tenants that occupy the same dwelling unit[4]as the landlord;
3. Tenants that occupy one dwelling unit in a Duplex where the Landlord’s principal residence is the second Dwelling Unit in the same Duplex;
4. Tenants that occupy an Accessory Dwelling Unit that is subject to the Act in the City of Portland so long as the owner of the Accessory Dwelling Unit lives on the site;
5. A Landlord who temporarily rents out their principal residence during an absence of not more than 3 years;
6. A Landlord who temporarily rents out their principal residence during the Landlord’s absence due to active duty military service;
7. A Dwelling Unit where the Landlord is terminating the Rental Agreement in order for an Immediate Family member[5]to occupy the Dwelling Unit;

8.    A Dwelling Unit regulated or certified as affordable housing by federal, state or local government is exempt from paying Relocation Assistance for a Rent increase of 10 percent or more within a rolling 12-month period:
a. so long as such increase does not increase a Tenant’s portion of the Rent payment by 10 percent or more within a rolling 12-month period; or 
b. in Lease Agreements where the Rent or eligibility is periodically calculated based on the Tenant’s income or other program eligibility requirements and a Rent increase is necessary due to program eligibility requirements or a change in the Tenant’s income.
This exemption does not apply to private market-rate Dwelling Units with a Tenant who is the recipient of a federal, state, or local government voucher;
Note:This exemption applies to Rent Increases and does not apply to Termination Notices;

1. A Dwelling Unit subject to the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970;
2. A Dwelling Unit rendered immediately uninhabitable not due to the action or inaction of a Landlord or Tenant; 
3. A Dwelling Unit rented for less than 6 months with appropriate verification of the submission of a demolition permit prior to the Tenant renting the unit;
4. A Dwelling Unit where the Landlord has provided a Fixed Term Tenancy and notified the Tenant prior to occupancy, of the Landlords intent to sell or permanently convert the Dwelling Unit to a use other thanas a Dwelling Unit subject to the Act.

Note:Remember that before being entitled to an exemption, the landlord needs to provide a copy of the Portland Housing Bureau’s acknowledgment letter to the Tenant.

LANDLORD DUTIES FOLLOWING PAYMENT OF RELOCATION ASSISTANCE

1. Landlord must include a Notice of Tenant’s Rights and Obligations (the “Notice”) and the eligible amount of Relocation Assistance with issuance of the following:
   1. Termination Notice;
   2. AnyRent Increase Notice;
   3. Relocation Assistance payment.

Note:MHCO has developed a form for the Notice.

1.  Landlord must notify the Portland Housing Bureau of all payments to tenants of Relocation Assistance within 30 days of making such payments.  

ADDITIONAL LANDLORD LIABILITY FOR VIOLATION OF ORDINANCE

1. Any Tenant claiming to be aggrieved by a Landlord's noncompliance with the above regulations in the Ordinance, “has a cause of action in any court of competent jurisdiction for Damages and such other remedies as may be appropriate.”
2. Damages include the following:
   1. An amount up to 3 times the monthly Rent; 
   2. Actual damages; 
   3. Relocation Assistance; and
   4. Reasonable attorney fees and costs. 

______________________________________________________

TENANT SCREENING

Discussion: Effective March 1, 2020, the City of Portland’s new screening ordinance (30.01.088 Screening Criteria for Applicants for DwellingUnits) – hereinafter the “Code” – will become law. The administrative rules have not yet been written. The latest draft from the office of Commissioner Eudaly is date February 20, 2019. It is set out below. The Housing Bureau was unable to give me a copy of the final draft. Below is a summary of the February 20, 2019 draft; it is believed that some of the more draconian provisions of the Ordinance were either deleted or softened. 

Note: I have said repeatedly that when screening applicants, a criminal history should be the very last reason to deny an applicant. For example, if the applicant could be denied for financial incapacity, prior references, evictions, etc. it becomes irrelevant whether they have a criminal record. Only use the criminal history as a last resort. 

1. Procedures.In addition to the protections set forth in the Act and Sections 30.01.085 and30.01.087 of the Code, the following procedures and guidelines apply to Landlords when screening an Applicant for residential tenancy in a Dwelling Unit (as defined in theAct).
2. Definitions. For purposes of this Ordinance, unless otherwise defined herein, capitalized terms have the meaning set forth in theAct.
   1. Applicant: An applicant for a Dwelling Unit covered by theAct.
   2. Supplemental Evidence: Any written information in addition to the application, that the Applicant believes to be relevant to the Applicant’s predicted performance as atenant.
   3. Head(s) of Household: Person or persons listed on a lease as the party or parties responsible for paying theRent.
   4. ADACompliant:
   5. OccupancyAgreement:
      1. Applications,Generally.
   6. First-come,First-served
   7. Completed applications must be received and processed on a first-come,first-servedbasis.
   8. All completed applications must be time-stampedto indicate the date and time that an Applicant submitted the application (the “SubmissionDate”).
   9. For applications received during an advertised open application period, a Landlord must provide an Applicant with a written or electronic receipt within one (1) business day of the Submission Date that accurately reflects the Submission Date and assigns the Applicant a queuenumber.
   10. A Landlord is exempt from the requirements of this subsection whenevera lottery system or coordinated access system is used to lease up new residential buildings with rent regulations of 80% AMI orlower.
   11. A Landlord must include the following with everyapplication:
   12. Notice to Applicants of the right to request a reasonable accommodation at any point before, during or after the applicationprocess;
   13. Notice that a Landlord may not deny an application solely because ofa reasonable accommodation request or because of the nature of the accommodationrequested.
   14. Notice to Applicants of their rights under this Section 30.01.088 by including a link to Portland Housing Bureau’s (“PBH”) website and a printed copy of the noticethat PHBcreates.
   15. A complete description of the applicable screeningcriteria.
   16. An opportunity on the application for an Applicant to indicate their disabilitystatus.
   17. A Landlord may only screen Head(s) of Household. Co-applicants that are not responsible for paying the Rent may be screened for criminal history and rental history (only for violation notices issued to the household for conduct of the co- applicant within the last year that demonstrates they created a hostile, unsafe,or harassing environment for other tenants or engaged in discriminatory conduct), pursuant to procedures and guidelines in this Section30.01.088.
   18. May require co-applicants not responsible for paying the Rent to signan Occupancy Agreement if the household application isapproved.
   19. A Landlord that owns less than fifty (50) Dwelling Units within the City of Portland, may refuse acceptance of a completed application only if the Applicant has a verifiable pattern of Rental Agreement violations with the Landlord and the mostrecent of such Rental Agreement violations occurred within the last 365 days.
   20. Any Applicant that self-identifies as mobility challenged on an applicationwithin the first 8 hours of an open application period must be given first priority for any vacant Dwelling Unit that is advertised as ADACompliant.
   21. Any application received earlier than the advertised open application period will be put in the queue immediately following the first 8 hours. If the Dwelling Unit is advertised as ADA Compliant, and the Applicant indicates as mobility challenged, they will still receive placement preference immediately following any other preference application received during the advertised open application period.
3. Advertisement of DwellingUnits.
   1. When publicly advertising for specific vacant Dwelling Units, a Landlord must specify an opening date and time when applications will be accepted and cannot accept applications for those specific units outside of the advertisedperiod.
   2. Except as otherwise prevented from complying due to the format requirements of an advertising service, screening criteria required by a Landlord, or a website address to the criteria, must be included in any public advertisement for available Dwelling Units as well as included on theapplication.
   3. Except as otherwise prevented from complying due to the format requirements of an advertising service, all public advertisements must also include if the Dwelling Unit is ADACompliant.
   4. When advertising newly vacant Dwelling Units, the open application period must be published at least 72 hours prior to the start of the open applicationperiod.
4. Identification.
   1. A Landlord must accept any of the following as forms of identification, or combination thereof, that verify the full name, date of birth, and picture of the applicant:
   2. Valid Social Security Number (SSNCard);
   3. Valid Permanent Resident Alien Registrations ReceiptCard;
   4. ImmigrantVisa;
   5. Individual Taxpayer Identification Number(ITIN);
   6. Non-ImmigrantVisa;
   7. Any other government-issued identification;or
   8. Any other non-government document or combination of documents that would allow verification ofidentity.
   9. A Landlord may not reject an application as incomplete due to the lack of aSocial Security Number(SSN).
   10. A Landlord may not inquire about the immigration status of an Applicantor require that any Applicant provecitizenship.
   11. Income.
   12. A Landlord may not require an income greater than two times the amount ofRent for the Dwelling Unit when costs for utilities are part of theRent.
   13. A Landlord may not require an income greater than two and a half times the amount of the Rent for the Dwelling Unit when costs for at least three essential utilities (such as garbage, sewer, water, or heat) are required to be paid separately by aTenant.
   14. Calculation of the income to rent ratio under thissection:
   15. Must include all sources of an Applicant’s income, including, but not limited to, wages, rent assistance (non-governmental only),verifiable family or friend assistance for at least three months of tenancy, and monetary publicbenefits;
   16. Must subtract from the Rent amount any portion of Rent covered byan Applicant’s local, state, or federal government rent voucher or housing subsidy before calculating the rent ratio;and
   17. Must apply cumulatively among Heads of Household when more thanone adult applies as a group.
   18. A Landlord may include a requirement for a guarantor (family member, friend, non-profit, or government agency as identified by the Applicant) or an Additional Deposit as described in Section 30.01.087 when the Applicant’s income ratio as calculated in the section above falls at or below two times the amount of theRent.
   19. To the extent that a Landlord requires a guarantor or Additional Deposit, the Landlord must allow the Applicant to choose between the twooptions.
   20. A Landlord may not require family or friend guarantor to have income greater than three times the current Rent but can require verifiable employment,verifiable residence within the United States, and no active collections activity for delinquent property or utilitydebt.
   21. A Landlord may not require a guarantor to sign a contract longer than thelength of the initiallease.
   22. ThresholdCriteria.
   23. A Landlord may forgo the mandatory individualized assessment as described in Section H if they adopt a screening-criteria that meets, or is more permissivethan, the thresholds described in the followingsection:
   24. Applicants will not be denied for the followingconditions:
   25. Criminalhistory:
   26. Any arrest that did not result in conviction, unless the resulting charge is pending at the time that theApplicant submits theapplication;
   27. Participation in or completion of a diversion or a deferralof judgmentprogram;
   28. Any conviction that has been judicially dismissed, expunged, voided orinvalidated;
   29. Any conviction for a crime that is no longer illegal in the state ofOregon;
   30. Any conviction or any other determination or adjudication in the juvenile justicesystem;
   31. Any criminal conviction for misdemeanor offenses where the dates of sentencing are older than threeyears;
   32. Any criminal conviction for felony offenses where the dates of sentencing are older than sevenyears;
   33. Credithistory:
   34. Credit score at least500;
   35. Lack of credit history, unless the applicant in bad faith withholds credit history information that mightotherwise form the basis fordenial;
   36. Adverse accounts under$1000;
   37. Property debt from damages in previous tenancyunder

$500;

• Bankruptcy filed by the applicant isclosed;
• Bankruptcy for Chapter 13 filed by the applicant is in an active repaymentplan;
• Medical or education/vocational trainingdebt.
• Rentalhistory:
  • An action to recover possession pursuant to ORS 105.105 to 105.168 if theaction:
    • Was dismissed or resulted in a general judgment for the Applicant before the applicant submits the application;
    • Resulted in a general judgment against the Applicant that was entered three or moreyears before the Applicant submits theapplication;
    • Resulted in a general judgment against the Applicant that was entered fewer than threeyears before the Applicant submits the applicationif:
      • The termination of tenancy upon which the action was based was without cause (no-cause eviction) pursuant to ORS 90.427(Termination of Periodic Tenancies);or
      • The judgment against the Applicant was a default judgment due to a failure toappear, if the Applicant presents credible evidence to the Landlord that the Applicant had already vacated the unit upon which the action was based at the time that notice of the action wasserved.
      • Any information that the Landlord obtains from a verbalor written rental reference with the exception of defaults in Rent, three or more material violations of a Rental Agreement within the last year that resulted in notices issued to the Tenant, outstanding balance due to the Landlord, or lease violations that resulted in a termination with cause.;or
      • Lack of rental history, unless the Applicant in bad faith withholds rental history information that mightotherwise form the basis fordenial.
• If an Applicant provides any Supplemental Evidence regarding criminal historyat the time, they submit their completed application, then the Landlord has to doan

individualized assessment as described in Section H if they intend to deny the application based on criminal history.

1. IndividualizedAssessment.
   1. A Landlord that chooses not to adopt the threshold criteria as set forth above, must conduct an individualized assessment before denying an Applicant for any criteria they haveestablished.
   2. Any Applicant that believes that they may have barriers to any advertised screening criteria shall be allowed to provide, at the time of application submission, all Supplemental Evidence they believe provides a positive offset to thebarriers.
   3. A Landlord has an obligation to consider any such SupplementalEvidence submitted by the Applicant including, but not limited to, thefollowing:
      1. Six or more consecutive months of job or incomestability;
      2. Completion of secondary education or job trainingprograms;
      3. Current enrollment in secondary education of job trainingsprograms;
      4. Current probation or paroleoversight;
      5. Certificate of GoodStanding;
      6. Current payment plan towards creditdebt;
      7. Completion of Rent Well or another tenant educationprogram;
      8. Six or more consecutive months of positive rental payments within thelast year;
      9. Completion of creditcounseling;
      10. Current participation in creditcounseling;
      11. Current participation with a legal or non-profit advocate to clearpast collections;
      12. Legitimate explanation of lack of verifiable credithistory.
      13. The presence of domestic violence as contributing factor to rental issues of concern;
      14. Current payment plan toward outstanding debts owed previouslandlord;
      15. Current case management or peer support services;or
      16. Any other evidence that the Applicant believes has a tangible impact to the specific barriers identified in an Applicant’shistory.
   4. If a Landlord receives the following types of Supplemental Evidence, a Landlord should assume that the presentation of such Supplemental Evidence is a request for a reasonable accommodation under the Fair Housing Act. An applicant reserves the right to use the following information as a request for Individualized Assessment aswell:
      1. Completion of drug or alcoholtreatment;
      2. Current enrollment in a drug or alcohol treatmentprogram;
      3. Completion of psychologicalcounseling;
      4. Current participation in psychological counseling;or
      5. Current case management or peer support services related to disabilityor mentalhealth.
   5. In addition, a Landlord must consider the information from the individualized assessment and Supplemental Evidence in light of the following before denying anApplicant:
      1. The nature and severity of thebarriers;
      2. The number and type of thebarriers;
      3. The time that has elapsed since the date the barriers occurred;and
      4. The age of the individual at the time the barrieroccurred.
2. Appeals.
   1. An Applicant that is denied for residential tenancy by a Landlord using the threshold criteria as described in Section G must have the opportunity toappeal that denial directly to the Landlord basedon:
      1. Incomplete or inaccurate information identified during thescreening process,or
      2. Additional supplementalevidence.
   2. An Applicant must be allowed 30 days, from the date the denial was issued, to request an appeal and submit all evidence related to theappeal.
   3. A Landlord is not required to hold the Dwelling Unit for the Applicant duringthe pendency of the appealprocess.
   4. If the appeal results in the denial being overturned, a Landlord must give the Applicant preference for future vacancies on the same property (with similar screening criteria and similar income ratio) if they apply within the first 4 hoursof an open application period, for up to 3 months from the date of the original appeal determination.
      1. If a denial is successfully appealed, a Landlord must provide a datedletter, signed by the Landlord, documenting the successful appeal that includes specifics about which properties qualify for thepreference.
      2. An Applicant who receives a letter of a successful appeal must attachthat letter to future applications with the same Landlord to receive preference, for up to 3 months from the date of the original appealdetermination.
      3. An Applicant who successfully appeals a denial cannot be charged a screening fee for future applications with the same Landlord, for up to3 months from the date of the original appealdetermination.
      4. If more than one Applicant provides a letter of a successful appeal during an open application period, the Applicants will receive preference inorder of the dates on the letter, with oldest date getting firstpreference.
      5. If there is a conflict between an appeals preference and an accessible unit preference, the accessible unit preference is first, only superseded by an Applicant with both an accessible unit preference and an appealspreference.
      6. If an Applicant applies with an appeal preference, the Landlord may require the Applicant to self-certify that no conditions have changedsince their originalapplication.
   5. A Landlord has the discretion to also maintain a wait list and contact preference applicants (in the order their appeal letter is dated), before advertising a vacant Dwelling Unit to the generalpublic.
3. Denials-General.
   1. An application can be denied without a Landlord first conducting an individualized assessment when an Applicant does not meet basic criteria requirements such as incomplete application, identification, income, or an Applicant has purposefully withheld or misrepresented requiredinformation.
   2. If an Applicant applies as part of a family or group, a Dwelling Unit can be denied to that Applicant individually but not the family or group as a wholeunless they no longer qualify for the income ratio or occupancystandards.
4. Denials-ThresholdCriteria.
   1. When denying an application based on Threshold Criteria, above, a Landlord must provide a written “Notice of Adverse Action” compliant with the Act, the Applicant within two weeks of thedenial.
   2. A Notice of Adverse Action can be provided to the Applicant by either a Landlord or a screeningcompany.
   3. A second denial after an appeal as described in Section I can be written ina manner at the discretion of theLandlord.
5. Denials-IndividualizedAssessment.
   1. When denying an application after performing an Individualized Assessment, a Landlord must provide a written “Notice of Denial” to the Applicant within two weeks of the denial thatincludes:
      1. The specific adverse information that matches the screening criteria information as provided with the application, including detailed information received from a rental reference if it is the basis of thedenial;
      2. The Supplemental Evidence, if any, that the Landlord considered and whether it influenced the decision of the Landlord to deny theapplication;
      3. An explanation of the legitimate, non-discriminatory business interestof the Landlord that justify denial of the application, and how the Supplemental Evidence provided did not address theinterest.
   2. A Notice of Denial can only be issued to the Applicant by theLandlord.
6. AdditionalDeposit.
   1. A Landlord may request an additional security deposit as set forth inOrdinance Section

30.01.087 as an alternative to issuing a Notice of Adverse Action or a Notice of Denial.

1. To request an additional security deposit, a Landlord must provide a written “Notice of Conditional Approval” to the Applicant that contains the same information as required in a Notice of Adverse Action or a Notice of Denial (depending on the screening process used) and additionally contains thespecific amount being requested as well as the ability for an Applicant to choose a payment plan as set forth in Section30.01.087.
2. If a Landlord requests an Additional Deposit as a condition of offsetting a low-income ratio, the Landlord does not need to issue a Notice of Conditional Approval but must follow the code as set forth in Section30.01.087.
3. ScreeningFees.
   1. A Landlord must return a screening fee, or communicate approval or denial of residential tenancy, to an Applicant within two weeks of the final determination of theapplication.
   2. If using a professional screening company exclusively, the screening feecharged by the Landlord cannot be more than what is charged by the screeningcompany.
   3. If using a professional screening company in addition to screening work by the Landlord, fees cannot exceed 25% above what is charged by the screening company.
   4. If a Landlord screens independently without the use of a professional screening company, fees cannot exceed 10% above what is charged by the average professional screening company in the Portland-Metroarea.
4. ModificationRequests.
   1. An Applicant that experiences disabilities cannot be denied housing based ona denial of reasonable modificationalone.
   2. If an Applicant’s modification request is denied, the Applicant must be allowed 24 hours to request an alternative modification that meets theirneeds.
   3. If the second modification request is denied, the Applicant must be allowed another 24 hours to request an alternative modification that meets theirneeds.
   4. If no reasonable modification can be made in the Dwelling Unit the Applicant applied for, then the Applicant may still accept the Dwelling Unit if they meet the eligibilitycriteria.

1. Exemptions.
   1. Any Dwelling Unit that is subject to a partnership or referral agreement betweena Landlord and a non-profit service provider or government agency working to place low income or vulnerable tenants into housing is exempted from this Section.
   2. Any Dwelling Unit not rented or advertised to the general public,(including online platforms with or without a fee), are exempted from thisSection.
   3. Any Dwelling Unit otherwise complying with state or federal loan or funding requirements is exempted from the parts of this Section in conflict with theloan or fundingrequirements.
   4. Any Dwelling Unit shared with a Landlord or sub-leaser as their primary residence is exempted from thisSection.
2.   Damages. Any Applicant claiming to be aggrieved by a Landlord’s noncompliance with the foregoing has a cause of action in any court of competent jurisdiction for Damages and any such other remedies as may beappropriate.
3.  

SECURITY DEPOSITS

Discussion: A new set of draft rules on security deposits (Ordinance No. 30.10.087) was marked as “Exhibit A” to the February 20, 2019 draft of the screening ordinance (Ordinance No. 30.10.088). It is also believed that the administrative rules for this Ordinance have not been written yet, as they have not been posted on the City’s website. Below is a summary of these rules, that are offered with the proviso that the final draft may be different. 

1. Additional Protections. The following additional protections regarding security deposits apply to Tenants that have a Rental Agreement or a Dwelling Unit covered by theAct.
2. Last Month’s Rent. If a Landlord requires, as a condition of tenancy, last month’s Rent, a Landlord may not collect more than an amount equal to one-half of a month’s Rent as a security deposit. 
   1. If a Landlord does not require last month’s Rent, a Landlord may not collect more than an amount equal to one month’s Rent as a security deposit. 
   2. If an Applicant receives a Conditional Approval asdefinedinSection30.01.088,aLandlordmayrequestanamountequaltoone-halfofamonth’s Rent as a security deposit in addition to the other amounts previously listed in this subsection. 
   3. A Landlord must allow a Tenant to pay such additional security deposit in installments over a 2-6-month period and in amounts as requested by theTenant.
3. Security Deposit.To the extent that a Landlord withholds an amount from a security deposit to repair damages to the premises beyond ordinary wear and tear, “ordinary wear and tear” shall mean deterioration that occurs without deliberate or negligent destruction, damage, or removal of any part of the premises, equipment, furnishings or appliances by the Tenant, a member of the Tenant household or other persons on the premises with the Tenant’s consent.

4.    Carpet Damage. To charge for carpets, a Landlord must take into consideration the cost only of the contiguous area where the carpet is required to be replaced due to damage and may not take into consideration the original expense of the carpet for the entire Dwelling Unit. 

a.   A Landlord may not chargeforinteriorpaintingofaresidence,exceptwhatisnecessarytorepairspecificdamagemade to a wall beyond ordinary wear and tear and to repaint walls that were painted by the Tenant without permission. 

b.   Basic cleaning is presumed to be ordinary wear andtear and nothing in this Subsection shall be construed to mean that a Landlord may charge for cleaning costs that do not address damage or filth beyond ordinary wear andtear.

5.    Landlord’s Movable Property.For purposes of determining the amount reasonably necessary to repair damaged, movable property in the Dwelling Unit, such movable property is presumed to depreciate at a rate of 3.6% per annum over a period of 27 years. 

a.   A Landlord may provide documentation demonstrating why a different calculation is justified for determining a reasonable amount necessary to repair an item of damaged, movable property. 

b.   Before executing the Rental Agreement, a Landlord must provide the Tenant with a list of movable property in the Dwelling Unit along with the depreciated value of each item at the time of move-in (the “Commencement Date”).

1. Condition Report.Within one week of the Commencement Date, a Tenant may complete and submit to the Landlord, a condition report (on a form provided by the Landlord) noting any and all damage in the Dwelling Unit (the “Condition Report”). 
   1. If the Tenant submits a Condition Report to the Landlord within one week of the Commencement Date, such Condition Report shall be the proof of the condition of the Dwelling Unit on the Commencement Date in order to assess damage beyond reasonable wear and tear at move out (the “Termination Date”). 
   2. If, after the first week, the Tenant has not completed a Condition Report, a Landlord must complete a Condition Report and provide a copy to the Tenant. 
   3. Any damages noted in the Condition Report completed by the Landlord upon move-in must also be documented in photographs and provided to the Tenant. 
   4. IfanydamagenotedintheConditionReportissubsequentlyrepaired,theLandlordmustrevisethe Condition Report to reflect such repair, have it initialed by the Tenant, and provide a copy of the revisedConditionReport.
   5. IfeitherpartydisagreeswithanydamagenotedontheConditionReport, they must write the nature of their disagreement on the Condition Report, initial, and provide a copy to the otherparty.

7.    Final Inspection.Within one week of the Termination Date of which the Landlord had notice, the Landlord shallconductawalk-throughoftheDwellingUnittodocumentanydamagebeyondordinarywear andtearnotnotedontheConditionReport(the“FinalInspection”).

a.   ATenant,and/ortheTenant’s representative, has the right to be present for the Final Inspection, but may choose not to participate. The Landlord must give notice of the date and time of the Final Inspection at least 24hours in advance to theTenant.

8.    Damage Withheld From Security Deposit.Any damage for which a Landlord intends to withhold a portion of a Tenant’s security deposit must be documented in writing and include proof of depreciated value for movable property in the Dwelling Unit including, but not limited to, original receipts or demonstration of a similar make and model, and visual damage must be documented in photographs and provided to the Tenant at the same time as the written accounting required under ORS 90.300 (12)(Security Deposits). 

a.   To the extent that a Landlord seeks to charge labor costs greater than $200 to a Tenant, the Landlord must provide documentation demonstrating that the labor costs are reasonable and consistent with the typical hourly rates in the metropolitan region. 

b.   A Landlord may not charge for damage noted on the ConditionReport.

1. Deposit of Security Deposit.Within 2 weeks of receipt of a security deposit, a Landlord must deposit the money in a separate checking, savings, money market, or client trust account and provide the bank institution name and account number in writing to the Tenant. If the account bears interest, the Landlord is required to pay such interest in full, minus an optional 5% deduction for administrative costs, to the Tenant unless it is used to cover any claims for damage. 
   1. For interest bearing accounts, the Landlord must provide a receipt of the account and any interest earned at the Tenant’s request, no more than once per year. 
   2. A Landlord may pool multiple security deposits in a single account so long as the account is separate from the Landlord’s personal funds, is not accessed except to deposit and withdraw Tenant deposits, and Landlord can provide an individual accounting of each Tenant deposit and the interest earned thereon. 
   3. A landlord shall have six (6) months from the effective date of this Subsection to comply with the above requirements.
2. Notice of Rights.Contemporaneously with the delivery of the written accounting required by ORS 90.300 (12)(Security Deposits), the Landlord must also deliver to the Tenant a written notice of rights regarding security deposits (“Notice of Rights”). 
   1. Such Notice of Rights must specify all of Tenant’s right to damages under this Section. 
   2. The requirement in this Section may be met by delivering a copyof this Section to the Tenant along with contact information for the nearest Legal Aid Services of Oregon office or the Oregon StateBar.
3. Written Account of Tenant Rent Payment History.Within 5 business days of receiving or giving a notice of any kind that terminates a tenancy, a Landlord must provide a written accounting of the Tenant’s Rent payment historythat covers the tenancy for the term or the prior two years, whichever islonger.

12. Rental History Form.Within 5 business days of receiving or giving a notice of any kind that terminates a tenancy, a Landlord must provide a completed Rental History Form as provided by Portland Housing Bureau.

1. Violation of Ordinance.A Landlord that fails to comply with any of the requirements set forth in this Ordinance No. 30.01.87 shall be liable to the Tenant for the security deposit, a penalty in the amount equal to two times the security deposit, as well as attorney fees and costs (collectively, “Damages”).
   1. Any Tenant claiming to be aggrieved by a Landlord’s noncompliance with the foregoing has a cause of action in any court of competent jurisdiction for Damages and any such other remedies as may beappropriate.

_________________________________________________________

[1]ORS 90.100(12) provides that a “Dwelling unit” regarding a person who rents a space for a manufactured dwelling or recreational vehicle or regarding a person who rents moorage space for a floating home as defined in ORS 830.700, but does not rent the home, means the space rented and not the manufactured dwelling, recreational vehicle or floating home itself.

[2]  "Associated Housing Costs." include, but are not limited to, fees or utility or service charges, means the compensation or fees paid or charged, usually periodically, for the use of any property, land, buildings, or equipment. For purposes of Portland’s rent increase ordinances, housing costs include the basic rent charge and any periodic or monthly fees for other services paid to the Landlord by the Tenant, but do not include utility charges that are based on usage and that the Tenant has agreed in the Rental Agreement to pay, unless the obligation to pay those charges is itself a change in the terms of the Rental Agreement. [See, https://www.portlandoregon.gov/citycode/28481#cid_708924]

[3]Note: Charges to a landlord for exceeding the Oregonrent cap laws, or for other violations under the recently enacted SB 608, are notidentified as “relocation assistance”. That law provides at Section 1: “(9)(a) If a landlord terminates a tenancy in violation of subsection (3)(c)(B), (4)(c), (5),(6) or(7)ofthissection: (A)Thelandlordshallbeliabletothetenantinanamountequaltothreemonths’rent inadditiontoactualdamagessustainedbythetenantasaresultofthetenancytermination; and (B)Thetenanthasadefensetoanactionforpossessionbythelandlord. (b)Atenantisentitledtorecoveryunderparagraph(a)ofthissubsectionifthetenant commencesanactionassertingtheclaimwithinoneyearafterthetenantkneworshould haveknownthatthelandlordterminatedthetenancyinviolationofthissection.”

[4]Under Portland City Code 33.910 a “Dwelling Unit” is abuilding, or a portion of a building, that has independent living facilities including provisions for sleeping, cooking, and sanitation, and that is designed for residential occupancy by a group of people. Kitchen facilities for cooking are described in Section 29.30.160 of Title 29, Property and Maintenance Regulations. Buildings with more than one set of cooking facilities are considered to contain multiple dwelling units unless the additional cooking facilities are clearly accessory, such as an outdoorgrill. Under ORS 90.100(12), which is used elsewhere in the Portland City Code, a “Dwelling Unit” “…means the space rented and not the manufactured dwelling, recreational vehicle or floating home itself. 

[5]Per the City’s Administrative Rules, the term “Immediate Family” means “…parent, foster parent, step parent, parent in law, sibling, foster sibling, step sibling, sibling in law, grandparent, grandparent in law, child, step child, foster child, grandchild,aunt, uncle, niece, or nephew.An Immediate Family member cannot be an Ownerof the Dwelling Unit, their spouse, or their domestic partner. The Immediate Familymember must have reached the age of majority (18)or be a legally recognized emancipated minor.”

Some disasters, like hurricanes and floods, allow you to take action ahead of time to save lives and property.  Others, like tornadoes, earthquakes, and flash floods, need more immediate action. You should have plans for both.

When visiting your local emergency agency or the American Red Cross to find out about potential problems in your area, ask for assistance in evacuation and shelter planning.  They should be able to tell you what types of shelters are available in your area or which sites would be set up as shelters if a disaster occurs. These would include local schools, community centers, churches, offices or other buildings capable of holding a large number of people temporarily.

If there are children in your community, check with local schools to learn their evacuation and shelter plans. In the case of an emergency, parents will want to know where their children will be taken and other steps the schools have prepared for.  (If these preparations are not adequate, parents should get involved and make sure that such plans are in place.)  This information should be made available to residents in your community through the schools or through a community newsletter or education program.

Some manufactured home communities may have an office or community building that can be used as a shelter in case of an immediate emergency. In the case or tornadoes or severe storms, this should have a below-grade basement or some other underground area.  In other situations, such as floods or hurricanes, the community shelter will not provide maximum protection and designated shelters may e several miles away.

Make sure that your residents understand the difference between an immediate emergency and an evacuation.  For example, when a tornado warning has been issued, they must go to the shelter immediately.  If a hurricane warning is issued, an evacuation is in order.

A good evacuation plan is very important – all residents should be familiar with it and have practiced it.  To develop this plan, work with the residents’ committee. Start with a detailed plan of the community that shows all roads and all homes.  Then look at the following things:

• How many entrances and exits are there in the community? Are they clearly marked?
• If there is more than one exit, which sections of the community should use each exit?
• In what order should each block or section leave? (Families near an exit should go first, as they will be the easiest and quickest to move.)
• Is there a bottleneck that can be fixed, or are there barriers that could be removed in an emergency to make evacuation easier?
• If an exit is blocked by the disaster, what other exits are available?
• Are there residents who will not be able to evacuate themselves and who will require help from others?

When you have identified the answers to these questions, develop the evacuation plan accordingly. For each exit, assign blocks or sectors of the community that will use the exit.  Then give each resident a note about the exit they should use and the order in which they will leave.  For example, residents with a Number 1 designation should go first and be given a certain time period in which to do so.  Then Number 2, Number 3 and so on. Orderly evacuation is the goal.

Give residents of the community a copy of the evacuation plan for their neighborhood, a map of the community and surrounding areas, a list of potential shelters they can go to, and an alternate exit to use if they can’t use the exit they are supposed to use.

They should also be told what kind of notice they will get when evacuation is ordered.      If the community has a warning siren or other audio system, what does each signal mean?  Can every home in the community hear the signal?  Will there be a phone “chain”?

For most communities, it’s a good idea to have a primary warning system, such as a siren, and a back-up plan, such as a phone chain or door-to-door notification.

In a phone chain, Person A calls Person B through F. Persons B through F call five more people, and so on.  It is important to keep residents and their phone numbers up-to-date if the phone chain is going to work well.

Residents also need to practice the evacuation.  This is a program that is best run by your community’s Resident Disaster Planning Committee.

This is the fifth in a series of articles on disaster preparedness and how to safeguard your community, save lives and minimize damage.

In addition to the plan you are developing for your manufactured home community, you should encourage each resident family to have its own disaster plan in place.  

Residents should know what types of disaster could occur, and what they can do about each one.  A community newsletter is a good way to educate residents, and so are community meetings.

Residents should also know how they will be notified of a potential disaster.  Does the community have a warning system, such as a siren, and what does each signal mean?  

If someone in the family is responsible for helping to notify others in the community, phone numbers or addresses should be posted near the phone or in a place that can be easily reached.

It’s a good idea for all members of a family to discuss and develop these plans together.  The plans should include:

• Escape routes in the home, if doors are blocked
• Where to go in case of an immediate emergency, such as a community shelter
• Where to go in case of an evacuation
• A map of the evacuation route
• A list of phone numbers that would be needed in a disaster  (This would include doctors, relatives and insurance agents)
• A contact person outside of the area for all family members to call to report on their safety and whereabouts
• A place to meet if the family is separated

In addition, each member of the family should be assigned a job to do to get ready for an emergency.  For example:

• Set up, maintain and move emergency supplies
• Stow breakable items
• Secure outside items, such as awnings, grills or patio furniture
• Turn off utilities (electricity, water, natural or LP gas)
• Collect pets 
• Collect valuable items, if time allows (credit cards, insurance papers, drivers licenses, photos)

Note: Different steps should be taken to secure the home, depending on what type of disaster is being planned for.

Every member of the family should be familiar with the plan, and should participate in planned community practices or drills. Children should know where to go and what to do in case of an emergency, and should practice with their parents several times each year.  They should also memorize contact names and phone numbers in case separated from their parents.

In a community disaster, families may need to be able to survive on their own for several days.  This means each household should have its own water, food, clothing, a first aid kit and other emergency supplies ready to go at all times.  A list of the basics each family should have is provided on the opposite page.  It has been adapted from a list developed by the Federal Emergency Management Agency (FEMA).

Family Emergency Supplies List

FEMA recommends that families use backpacks or duffel bags to store their emergency supplies and to move them, if necessary. They should contain items from the list below.

Families should keep their emergency supplies in a cool, dry place.  Boxed foods should be stored in closed containers.  The food and medical supplies should be dated and replaced with new supplies as needed.  If you are storing water over a long period of time, treat each container with a water purification element before storing it.  Keep water in a cool, dark place in tightly closed, unbreakable containers.

If someone in your family has a disability or specific medical problem that creates special needs, be sure that the necessary items are included in the emergency supplies.  If someone in the family is dependent on electric powered respirators or other medical equipment, find out what kinds of special assistance are available in the community.  If a family has no one who is capable of driving in an evacuation, make sure that a neighbor or someone else nearby will provide transportation.

Water, Food and Utensils

• Water (1 gallon per person per day) in non-breakable containers
• Ice and cooler chest
• Water purification materials: tablets, tincture of iodine or household bleach, with instructions on how they are used
• Food: high-nutrition and ready to eat items like canned tuna, peanut butter, granola bars
• Non-electric can opener
• Special foods, such as baby food, if needed
• Pet food, if needed
• Plastic utensils and cups

Communications, Lighting and Safety

• Battery-powered radio and extra batteries
• Cellular phone or citizens band radio
• NOAA weather-alert radio
• Fire extinguisher
• Flashlights and extra batteries
• Work gloves
• Propane gas stove

Clothing and Bedding

• One complete change of clothing for each person, appropriate for weather conditions
• Sturdy shoes
• Outer-wear appropriate for weather conditions
• Extra underwear and socks
• Sleeping bag or two blankets for each person
• Pillows

Personal Items

• Contact lens solution
• Dentures
• Deodorant
• Family Medications
• Insect repellent
• Sanitary napkins or tampons
• Sewing kit
• Shampoo, comb, hair brush
• Shaving kit
• Soap, toothbrushes, and toothpaste
• Special children’s needs: toys, blanket, pacifier, diapers
• Washcloth and towel

First Aid Kit

• Adhesive tape and bandages
• Antibiotic and anti-itch ointments
• Antiseptic solution
• Aspirin or substitute
• Diarrhea medication
• First aid handbook
• Petroleum jelly
• Prescription and non-prescription medications used by family
• Scissors and tweezers
• Sterile bandages

Papers and Valuables

(if not kept in a safety deposit box)

• Birth certificates
• Credit cards and cash
• Deeds and mortgages
• Drivers licenses
• Insurance policies
• Inventory of household goods (photos preferred)
• List of emergency phone numbers
• Photos that can’t be replaced
• Savings and checking account records
• Small valuables: watches, jewelry, cameras, electronics
• Stocks and bonds
• Wills

Answer:  Below is the relevant statute. Note it is NOT found in the landlord-tenant law (ORS Chapter 90), so many managers don’t see them; they are found in ORS Chapter 91.

91.120 Eviction of employee; notice required. An employee described in ORS 90.110 (7)[1]may only be evicted pursuant to ORS 105.105 to 105.168 after at least 24 hours’ written notice of the termination of employment or a notice period set forth in a written employment contract, whichever is longer. This section does not create the relationship of landlord and tenant between a landlord and such employee. (Emphasis added.)

So, check your manager’s employment contract to see if it addresses continued occupancy after termination. If it says nothing, then minimum amount of time you must give is 24-hours. The statute couldbe read to mean that the written 24-hour termination of employment is sufficient notice. However, I would suggest that when you terminate the manager you alsoissue a written notice of termination of their occupancy. 

The manager is not a “tenant” for purposes of ORS Chapter 90, so you don’t need to worry about adding three days for mailing etc. I would try to have the termination of employment and the termination of occupancy hand delivered. 

If you have questions about the termination of employment, you should contact an employment attorney. As for the termination of occupancy, all you need to say is the following:

DATE & TIME OF DELIVERY: _________________________

Pursuant to ORS 91.120, please regard this as notice of formal termination of your right of occupancy of [address]:_______________________________________ (“Premises”).  Please vacate the Premises no later than 5:00 PM on the ___ day of ________________, 2019 [Date and Time to be no less than24-hours from above date and time of delivery].  If you have any questions please contact your attorney.

[Signed]

______________________________

Make sure the notice gives a full 24-hours advance notice. Certainly, unless there is reason for not doing so, you can always insert a longer period of time to vacate.  Don’t agree to any extensions without it being in writing.

If the ex-manager refuses to vacate, you may append the notice to the standard court-issue summons and eviction form and have it served. The eviction process would be the same as if you were evicting a park tenant. The only thing different is that ORS Chapter 90 does not apply.

I think it’s important that your employment agreement makes clear that (a) the manager’s occupancy of the park-owned home is conditioned upon their continued employment, and (b) that upon termination of employment you have the right to terminate their occupancy under ORS 91.120 with not less than 24-hours’ notice.

Note that ORS 92.120 assumes the manager doesn’t own the home. If he or she does own the home, it’s a far different equation in my opinion. If that is the case, it would seem their continued right of occupancy should be addressed in the employment agreement, since otherwise, the ex-manager could morph into a “tenant” under ORS Chapter 90 if they started making payments monthly space rent. If you are thinking about hiring a current tenant as a manager, you should consult your attorney for directions as how to fashion the employment agreement.  

Event information coming soon.

Answer.  Under the current law,[1]a landlord may unilaterally amend a rental agreement to convert to submetering by giving the tenant not less than 180 days’ written notice.

1. If the utility or service was included in the rent before the conversion to submeters, the landlord must reduce the tenant’s rent on a pro rata basis upon the landlord’s first billing of the tenant using the submeter method. 
2. The rent reduction may not be less than an amount reasonably comparable to the amount of the rent previously allocated to the utility or service cost averaged over at least the preceding one year. 
3. A landlord may not convert billing to a submeter method less than one yearafter giving notice of a rent increase, unless the rent increase is an automatic increase provided for in a fixed term rental agreement entered into one year or more before the conversion. 
4. Before billing the tenant using the submeter method, the landlord must provide the tenant with written documentation from the utility or service provider showing the landlord’s cost for the utility or service provided to the facility during at least the preceding year.
5. A utility or service charge to be assessed to a tenant may consist of:
   1. The cost of the utility or service provided to the tenant’s space and under the tenant’s control, as measured by the submeter, at a rate no greater than the average rate billed to the landlord by the utility or service provider, not including any base or service charge;
   2. The cost of any sewer service for wastewater as a percentage of the tenant’s water charge as measured by a submeter, if the utility or service provider charges the landlord for sewer service as a percentage of water provided;
   3. A pro rata portion of the cost of sewer service for storm water and wastewater if the utility or service provider does not charge the landlord for sewer service as a percentage of water provided;
   4. A pro rata portion of costs to provide a utility or service to a common area;
   5. A pro rata portion of any base or service charge billed to the landlord by the utility or service provider, including but not limited to any tax passed through by the provider; and
   6. A pro rata portion of the cost to read water meters and to bill tenants for water if:
      • A third-party service reads the meters and bills tenants for the landlord; and
      • The landlord allows the tenants to inspect the third party’s billing records as provided by ORS 90.538.
6. A landlord may not bill or collect more money from tenants for utilities or services than the utility or service provider charges the landlord. 
7. A utility or service charge to be assessed to a tenant under the submetering law may not include any additional charge, including any costs of the landlord, for the installation or maintenance of the utility or service system or any profit for the landlord.      
8. To assess a tenant for a utility or service charge for any billing period using submetering the landlord must  give the tenant a written notice stating the amount of the utility or service charge that the tenant is to pay the landlord and the due date for making the payment. 
   1. The due date may not be before the date of service of the notice. 
   2. If the rental agreement allows delivery of notice of a utility or service charge by electronic means, for purposes of this subsection, “written notice” includes a communication that is electronically transmitted.
   3. If the landlord includes in the notice a statement of the rent due, the landlord shall separately and clearly state the amount of the rent and the amount of the utility or service charge.

No. 2 Question. The tenants were given the 180-day notice of water submetering and space rents haven't been raised in a year.  Do I need to do anything else before I start billing them?

Answer. Note that the law provides the one-year period runs from the dateof the last rent increase notice. So that means that your last increase need be no sooner than nine months (i.e. 12 months minus 3 months, or 90 days under ORS 90.600 (Rent Increases)if tenants are on month-to-month tenancies). As for what else you need to do, see answers 4) and 8) to Question No. 1, above.

No. 3 Question. My understanding is that I have to now lower space rents (in addition to not raising lot rents for a year) equal to what they have individually paid on average.  How long before I can raise rents again?

Answer.  The only limitation is the prohibition on raising the rent is a landlord may not raise the rent for purpose purposes or recouping the capital cost within the first six months after installation of the submeters. If the rent increase was for other reasons, I see no limitations. However, I think the “optics” of increasing rents immediately after reducing them as a part of a submeter conversion would raise questions of bad faith under ORS 90.130(Obligation of Good Faith).

No. 4 Question.Can I add the billing fee to the water bill?

Answer. I am not sure what you mean by a “billing fee”.  ORS 90.536(2) (Charges for Utilities)provides the landlord may recover:

1. The cost of the utility or service provided to the tenant’s space as measured by the submeter, at a rate no greater than the average rate billed to the landlord by the utility or service provider, not including any base or service charge;
2. The cost of any sewer service for wastewater as a percentage of the tenant’s water charge as measured by a submeter, if the utility or service provider charges the landlord for sewer service as a percentage of water provided;
3. A pro rata portion of the cost of sewer service for storm water and wastewater if the utility or service provider does not charge the landlord for sewer service as a percentage of water provided;
4. A pro rata portion of costs to provide a utility or service to a common area;
5. A pro rata portion of any base or service charge billed to the landlord by the utility or service provider, including but not limited to any tax passed through by the provider; and
6.  A pro rata portion of the cost to read water meters and to bill tenants for water if:
   1.  A third-party service reads the meters and bills tenants for the landlord; and
   2.  The landlord allows the tenants to inspect the third party’s billing records as provided by ORS 90.538 (Tenant Inspection of Utility Billing Records)

      (3) Except as provided in subsection (2) of this section, the landlord may not bill or collect more money from tenants for utilities or services than the utility or service provider charges the landlord. A utility or service charge to be assessed to a tenant under this section may not include any additional charge, including any costs of the landlord, for the installation or maintenance of the utility or service system or any profit for the landlord.

No. 5 Question.Can I add the cost of the water meters AND the installation labor to the water bill amortized over 5 years in monthly payments?  How exactly does this work?

Answer.  The landlord may recover the cost of installing the submeters, including costs to improve or repair existing utility or service system infrastructure necessitated by the installation of the submeters, only as follows:

1. By raising the rent (as with any capital expense), except the landlord may not raise the rent for this purpose within the first six months after installation of the submeters; or
2. By imposing a special assessment pursuant to a written special assessment plan adopted unilaterally by the landlord. 
   1. The plan may include only the landlord’s actual costs to be recovered on a pro rata basis from each tenant with payments due no more frequently than monthly over a period of at least 60 months. 
   2. Payments must be assessed as part of the utility or service charge. 
   3. The landlord must give each tenant a copy of the plan at least 90 days before the first payment is due. 
   4. Payments may not be due before the completion of the installation but must begin within six months after completion. 
   5. A new tenant of a space subject to the plan may be required to make payments under the plan. Payments must end when the plan ends. 
   6. The landlord is not required to provide an accounting of plan payments made during or after the end of the plan.

No. 6 Question. Do the tenants need to sign a lease addendum?

Answer.  Oregon law allows landlords to “unilaterally amend” the rental agreement to provide for conversion to submetering assuming the rental agreement does not already allow the landlord to do so. 

In those cases, tenants should each be given an amendment providing that the landlord may convert from pro-rata or in-rent water charges to submetering. There is no specific period after the unilateral amendment that the landlord must convert. The current MHCO rental and lease agreements already provide for this. However, due to the submetering legislative changes effective on January 1, 2020, they will need to be updated.

For people with previous experience in the industry, this lesson offers a refresher—and a way for management to ensure that everyone is on the same page when it comes to your community’s commitment to treating everyone fairly, regardless of race, color, or any other characteristic protected under federal, state, or local fair housing law.

In this lesson, we’ll start with an overview of fair housing law: what it says and who it covers. Then, we’ll offer seven rules so that everyone understands how to recognize—and avoid—the pitfalls that can lead to fair housing trouble. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

7 RULES FOR COMPLYING WITH FAIR HOUSING LAW

Rule #1: Get to Know Fair Housing Law

The Fair Housing Act (FHA) is a federal law that bans housing discrimination nationwide based race, color, religion, national origin, sex, disability, and familial status. These seven factors are also known as “protected classes.” Most are self-explanatory, but the law defines some of these terms in ways that make it more complicated than what it seems.

Race and color: The FHA bans discrimination based on both race and color, two separate but closely related characteristics. In general, race refers to a person’s physical appearance, while color refers to a characteristic of a person’s race. It’s possible to bring a discrimination claim based on race, color, or both, but in practice, fair housing claims based on color alone are rare.

National origin: The FHA bans discrimination based on national origin, which generally refers to the country where people or their ancestors were born. This broad category protects people from discrimination because they or their ancestors came from another country, because they have a name or accent associated with an ethnic group, because they don’t speak English, or because they are married to or associated with people from a particular country. In some cases, discrimination claims based on national origin are closely tied to claims based on race or color. For example, a community that shows a preference for members of a certain ethnic group, such as Korean people, could be accused of discrimination based on race, color, and national origin.

Religion: The FHA prohibits discrimination based on religion, which generally means that communities may not discriminate against members of a particular faith or belief system. It’s unlawful to treat people differently because they are members of a religious group or because they do—or do not—attend religious services. Though it clearly applies to members of established religions, the law may be broad enough to protect people who are not affiliated with a particular religion or don’t ascribe to particular religious beliefs.

Sex: The FHA bans discrimination based on sex, which generally means that communities may not exclude or otherwise discriminate against anyone based on that person’s gender. Traditionally, the ban on sex discrimination didn’t apply to discrimination claims based on sexual orientation, though advocates have been pressing for that to change.

Sexual harassment is a form of discrimination based on sex, and involves two types of unwanted sexual conduct:

• “Quid pro quo” (which means “this for that”) discrimination occurs when a resident is pressured to succumb to unwelcome sexual advances in exchange for either positive or negative treatment (such as getting a discounted rent or avoiding eviction for late rent payments).
• Hostile housing environment discrimination occurs when a resident is subjected to severe and pervasive sexual harassment that unreasonably interferes with the use and enjoyment of the premises.

Familial status: The FHA bans discrimination based on familial status, including families with minor children, though the law is broader than that. Under the FHA, the ban on discrimination based on familial status applies to households with one or more children under 18 years of age, where the child is living with:

• A parent;
• A person who has legal custody (such as a guardian); or
• Someone who has the written permission of the parent or legal custodian to care for the child.

The familial status provisions also apply to pregnant women and anyone in the process of securing legal custody of a child under 18.

There is an exception, which allows certain types of senior housing communities to lawfully exclude children. But the exception applies only if the community meets strict technical standards to qualify as “housing for older persons.” Unless they do so, communities may not simply declare themselves as “adult communities” or exclude families with children under 18 from living there.

Disability: Technically, the FHA bans discrimination based on “handicap,” but the term “disability” is now more commonly used. Under the FHA, “disability” generally means a physical or mental impairment that substantially limits one or more major life activity.

That applies to a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In general, it’s unlawful to discriminate against anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.

How does the law ban housing discrimination? The FHA bans housing discrimination by outlawing a broad range of discriminatory practices based on race, color, religion, national origin, sex, disability, or familial status. Discriminatory practices include:

• Refusing to rent or making housing unavailable;
• Falsely denying that housing is available for inspection or rental;
• Using different qualification standards or rental approval procedures;
• Applying different terms or conditions, such rental charges or security deposits;
• Discouraging prospects from renting a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable with existing residents;
• Assigning residents to a particular section of a community or floor of a building;
• Providing different housing services or facilities, such as access to community facilities; and
• Failing to provide or delaying maintenance or repairs.

In addition, the FHA bans discriminatory statements that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. And the law also prohibits retaliation by making it unlawful to threaten, coerce, intimidate, or interfere with anyone exercising a fair housing right or assisting others who exercise that right.

Additional requirements related to disability. Compliance with fair housing law requires more than merely refraining from discrimination against individuals with disabilities. The law goes further to protect individuals with disabilities by making it unlawful to:

• Refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for the individual with a disability to fully use and enjoy the housing;
• Refuse to allow reasonable modifications to the unit or common use areas, at the applicant or resident’s expense, if necessary for the individual with a disability to fully use the housing; or
• Fail to meet the following accessibility requirements in the design and construction of rental housing with four or more units that were first occupied after March 13, 1991:

• Accessible entrance on an accessible route;
• Accessible common and public use areas;
• Doors sufficiently wide to accommodate wheelchairs;
• Accessible routes into and through each dwelling;
• Light switches, electrical outlets, and thermostats in accessible locations;
• Reinforcements in bathroom walls to accommodate grab bar installations; and
• Usable kitchens and bathrooms configured so that a wheelchair can maneuver about the space.

Rule #2: Learn Applicable State and Local Fair Housing Laws

The FHA applies nationwide, but rental housing communities also must comply with applicable state or local fair housing laws. About half mirror federal requirements, but many go further to ban discrimination based on:

Marital status: Nearly half the states prohibit housing discrimination based on marital status, which generally means being single, married, divorced, or widowed.

Age: Many state and local laws ban discrimination based on age, though there are significant differences in how the laws apply because of the way they define “age.”

Sexual orientation and gender identity: Many state and local fair housing laws ban discrimination based on sexual orientation; many, but not all, also cover gender identity or transgender status.

Source of income: Many state and local fair housing laws also cover lawful source of income to ban discrimination against people based on where they get their financial support. The specifics of the laws vary, but they generally apply to wages, retirement benefits, child support, and public assistance. Many, but not all, also cover housing subsidies, most notably Section 8 housing vouchers.

Military status: Some state and local laws offer some form of fair housing protection for military status. The laws generally prohibit discrimination against active duty members and veterans of the armed forces, reserves, or state National Guard.

Other protected classes: Some state and local laws ban discrimination based other factors, such as status as a survivor of domestic violence, genetic information, HIV status, lawful occupation, political beliefs or affiliation, student status, alienage or citizenship, personal appearance, or arbitrary personal characteristics.

Coach’s Tip: For more information on state and local fair housing laws, see the April 2019 lesson, “Complying with State and Local Fair Housing Laws,” available on our website.

Rule #3: Watch What You Say

What you say could come back to haunt you. Under the FHA, it’s unlawful to make statements that suggest a preference for—or against—anyone based on race, color, religion, national origin, sex, disability, or familial status. The rules apply to any statements—spoken or written—so you must be careful about what you say on the phone, in person, and any other form of communication with prospects, applicants, or residents.

You have to be careful about what you say because the rules don’t require proof of discriminatory intent. Statements are taken at face value to determine whether they suggest a preference for—or against—anyone based on race or any other protected characteristic. Unless you’re careful, you could face a fair housing complaint based on what you say, or write, or post—even if you didn’t mean to express a discriminatory preference.

Avoid making any stray remarks or asking questions that could get you into fair housing trouble. You might simply be curious—or trying to be friendly—but people can be easily offended if they think you’ve crossed the line by saying or asking something that you shouldn’t. Steer clear of comments or questions about how prospects look, what they wear, what their name is, or how they speak, because they all—in one way or another—touch on protected characteristics.

When meeting people from foreign countries or different cultures, for example, Sadovsky warns that you shouldn’t ask questions about their accent or clothing, even if you’re genuinely interested in knowing more about where they come from. Even though your intentions are good, the prospect may suspect that you have discriminatory reasons for asking questions related to her national origin.

Example: In 2014, a Massachusetts real estate broker was found liable for violating fair housing law by casually asking a prospect about her national origin. It happened during a meeting with a married couple when the broker—whose wife was Brazilian—asked the wife where she was from. Even though his question had no discriminatory intent and didn’t result in discrimination against the couple, the question itself violated fair housing law [Linder v. Boston Fair Housing Commission, February 2014].

Don’t ask people about their disabilities—even if you’re just trying to be helpful. With only limited exceptions, it’s unlawful to ask prospects questions about whether they or anyone associated with them has a disability, or about the nature or severity of a disability. When you’re talking with someone in a wheelchair, for example, Sadovsky says that you shouldn’t make any comments—or ask if their disability is permanent or what happened to them.

The same goes for anyone using a service animal or other disability-related assistive device. The law allows disability-related inquiries when necessary to respond to a reasonable accommodation request, but you must wait to be asked—you shouldn’t offer an accommodation if the prospect hasn’t asked for one.

Coach’s Tip: Find out what you should say if a prospect initiates a conversation about the personal attributes about the community’s residents or those living in neighboring units. You don’t want to inadvertently fall into the trap of discussing the type of people who live in your community during what seems like a casual conversation.

Rule #4: Watch Your Tone

It’s not only what you say, but how you say it that’s important when interacting with prospects, applicants, residents, and the general public. Of course, you have to abide by fair housing law, but there’s more to it than that.

It may seem simple, but you’re expected to act courteously and professionally when dealing with people—no matter what your job. All too often, simple “people skills” are overlooked during employee training, says Sadovsky. That’s too bad, she says, because more people file complaints because of the way they’re spoken to or treated than they do as a result of actual discrimination.

Sadovsky says that a lot of fair housing complaints could be softened—or avoided altogether based on how you handle problems. “The words you use and the behavior you choose can either lessen the complaint or pour gas on an already burning fire,” she says. 

It starts with baseline civility, like standing up to greet someone when she comes into your office. All too often, people don’t look up with they’re on the phone or their computer. Sadovsky says it can be a big problem in a busy office, where you might be with customers, or on the phone, or doing paperwork. But no matter how busy you are, you should always acknowledge people when they walk through the door. At the very least, you can look up and smile, so they know you see them and know that they’re there.

Don’t let personal beliefs, opinions, and judgments affect the way you treat people, particularly in initial encounters with prospects since you don’t know much about each other at that point. Of course, we all have the right to own own personal beliefs and opinions, so there’s nothing unlawful about judging people based on outward appearances. Nevertheless, you’ve got to be careful—even if you don’t say anything, your facial expressions or body language may give you away, triggering the perception of discrimination. That’s why you should be prepared to put on your “game face” when you get to work, so that you greet all prospects, applicants, and residents with the same cordial professional attitude, no matter who they are or what they look like.

Rule #5: Get Up to Speed ASAP

It’ll take time to learn your community’s standard policies and procedures, but it’s important to get up to speed quickly. Understanding the rules—and applying them consistently—helps reduce the likelihood that the community will be accused of acting in a discriminatory or arbitrary manner while dealing with prospects, applicants, or residents.

Let’s say your job is to answer the phones. Usually, the calls are from prospects who are responding to an ad or gathering information about the community. But a call could be a fair housing “tester,” who’s like a secret shopper, checking to see how your community treats people based on their race, national origin, or other protected class.

Example: In April 2019, the owner of a Maine rental property and its rental agent agreed to pay $18,000 to settle allegations that they denied housing to families with children.

The case came to HUD’s attention when a private fair housing organization filed a complaint accusing the owner and rental agent of discrimination based on familial status by refusing to negotiate with fair housing testers posing as families with children, posting discriminatory advertisements indicating that children weren’t allowed, and making discriminatory statements to fair housing testers.

Federal fair housing law prohibits housing providers from denying or limiting housing to families with children under age 18, including refusing to negotiate, making discriminatory statements, and publishing discriminatory advertisements based on familial status.

“It’s hard enough for families to find places to live that meet their needs without being denied suitable housing because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD is committed to working to ensure that housing providers comply with their Fair Housing Act obligation to treat all applicants the same, including families with children.”

It’s important to answer calls in the same professional manner—and to provide the same information—because testers often check for differences in the quality and quality of information provided. Testers also look for differences in response times, but that doesn’t mean that every failed or delayed response is because of discrimination. It may be a simple oversight, but that’s not how it will look to a prospect—or a fair housing tester posing as a prospect.

Even without seeing a prospect, you could face a fair housing complaint if you treat people differently based on the way they speak. If you fail to return calls or give incorrect information about the availability of units because the caller sounds like he’s African American or has a foreign accent, you could trigger a discrimination complaint based on race or national origin.

Rule #6: Learn About Disability Rules

Applying standard rules and procedures is important, but there’s a catch: Fair housing law requires rental housing communities to make exceptions for individuals with disabilities under certain circumstances. Under the FHA, housing providers must consider requests for reasonable accommodations in policies, procedures, and services when necessary to enable an individual with a disability to fully use and enjoy the property.

For example, let’s say you’re answering the phone at a community that doesn’t allow pets. You must be careful how you answer if a caller asks about living there with an assistance animal. It would be a mistake to say no, the community doesn’t allow pets of any kind. Even if the community has a “no pets” policy, the community must consider a request for an exception to the policy as a reasonable accommodation when necessary to allow an individual with a disability to use and enjoy the home. 

Example: In 2017, a court upheld a ruling that the owner of an Oregon community had to pay a $9,000 civil penalty, along with nearly $170,000 in attorney’s fees and costs, for unlawfully denying reasonable accommodation requests for assistance animals.

The lawsuit was based on an investigation by a local advocacy group, which arranged for testers to call the community posing as prospective residents. The phone was answered by a friend of the community’s owner, who was covering the front desk in exchange for being allowed to live there. When the testers asked about living there with “therapy animals” or “assistance animals,” the friend initially said he’d have to check with the owner, but he later told them that the owner wouldn’t allow pets. After a series of proceedings, a court found the community liable for disability discrimination under federal and state fair housing law.

On appeal, the court affirmed, ruling that there was proof that the community denied the reasonable accommodation requests. The community, via the friend, heard that the callers wanted to keep assistance animals and immediately denied them a reasonable accommodation [Avakina v. Chandler Apartments LLC, July 2017].

Rule #7: When in Doubt, Ask for Help

It’ll take time to master all the policies and procedures that guide community operations, but in the meantime, don’t be afraid to ask questions if you’re unsure about how to deal with a given situation. Doing so just might save the community from a discrimination complaint.

Guessing what to do—or just winging it—because you don’t want to acknowledge that you don’t know what to do is a mistake. You should ask for guidance if you’re are unsure about how to handle a particular situation—and know who you can ask for help. For example, find out whether your community has a fair housing coordinator, a staff member who acts as the community’s in-house expert on fair housing matters. In most cases, the fair housing coordinator should be able to answer many questions—or know where to go to get the answers.

Coach’s Tip: You’ve got a lot on your plate getting up to speed, but be sure to follow the rules when it comes to the paperwork. In some ways, good recordkeeping is like a good insurance policy: It’s there to protect the community if, despite your best efforts to be careful and obey the rules, you run into a problem. Under the law, people have quite a long time to file to file a fair housing complaint. A complaint could come in months—or years—after the alleged discrimination occurred. Without the paperwork, how can you be expected to remember just what happened? Even if you do, it’s not as good as documentation created at the time of the events in question. Memories fade—stories change—so it gives the other side a leg up if the community can’t produce the records to back up your side of the story.

• Fair Housing Act: 42 USC §3601 et seq.
•  

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. 

While setting up a disaster plan for manufactured home communities, be sure to include steps that would reduce the risk of damage or injury. Here are some actions to consider: 

• Keep trees healthy and strong.  Remove dead limbs immediately, and cut back branches that overhang buildings or touch power or phone lines.

• Make sure all homes in the community are installed properly and comply with all local codes that apply to disasters.

• Do visual inspections of the community on a regular basis to look for damage to foundations, roofs, walls, tie-downs, awnings and other structures.  Notify residents of any potential problems observed on their homesite.

• Install an audio warning system, such as a siren or horn, and tell residents when and how it will be used.

• Have a battery-powered radio that can monitor reports from the National Weather Service, an agency of the National Oceanic and Atmospheric Administration (NOAA).  These are referred to as NOAA Weather Radios.  The National Weather Service broadcasts updated weather warnings and forecasts for most kinds of weather emergencies.  NOAA recommends that you buy a radio that can run on either electricity or batteries, and that has a feature that automatically sends out a warning “beep” when a weather watch or warning is issued.

• Inspect fire hydrants regularly and keep them clear of debris, plants and other obstructions.

• If floods are a potential problem, consider building earth mounds or other types of flood walls around the community.

Also educate residents about steps they can take to reduce risk.  Here are some actions they should consider:

• Anchor major appliances to the walls or countertops with heavy brackets.

• Put child-safety locks on cupboards, so they won’t fly open.

• Use picture hangers instead of nails for wall hangings.

• Recoat roof with sealer as needed.

• Check awnings, gutters, siding, roof and other parts of the home regularly for structural problems.

• Make sure the water heater and furnace are bolted to the floor or wall.

• Learn how to turn off the water, electricity, natural gas or propane quickly, and teach everyone in the family how to do it.

• Have a professional technician install and maintain a proper set of tie-downs with anchors.

• Use additional tie-downs for decks, sheds, carports or other additions.

• Make sure the tie-downs and anchors used are the right kind for the soil under the home.

• Inspect tie-downs regularly to ensure straps and connectors are not damaged.  If tie-downs are loosened in the fall to avoid damage from frost-heave, be sure to tighten them again in the spring.

In addition to helping residents get ready for a disaster, help them learn about general home safety. If they make their homes safer for day-to-day living, they will also reduce problems during a disaster. 

Fire is the most serious hazard.  Here are some guidelines to reduce risk of fire and accidents:

• Install smoke detectors.  If they run on batteries, change them once a year.  Clean the detectors monthly and test them regularly. (Some local fire departments give away smoke detectors or make them available to the community for very low prices. Community owners and operators might want to consider a similar program if one is not offered by the local fire department.)

• Have appliances and heating and cooling equipment checked each year by a qualified technician.

• Don’t store combustible or flammable materials like paint thinner, gasoline, turpentine or kerosene, anywhere near water heaters, furnaces, stoves or other possible sources of heat that could ignite them.

• Inspect electrical cords for fraying or other damage, and replace as needed.

• Keep and “A-B-C” – type fire extinguisher handy and teach all family members how to use it. (Fire extinguishers are labeled for the types of fires they can be used on.  An ‘A’ rated unit is good for wood, paper, trash, and plastic fires.  ‘B’ rated is good for gasoline, oil and grease fires.  ‘C’ rated is used for electrical fires.  An “A-B-C” fire extinguisher can be used for all three types of fires, so it is the best choice for homes.)

• Keep curtains, clothing and other materials away from space or wall heaters.

• Install vinyl or metal skirting material around the home to keep out leaves, debris or other material that could catch fire.

• Don’t store anything flammable under the home.

• Trim back trees that overhang the home or interfere with incoming services, such as electric and phone lines.

• Take steps to prevent falls: Add lighting to areas indoors and outdoors that are dark or shadowed.  Mark steps with reflective tape, if appropriate.  Keep a flashlight in each bedroom, and tuck away extension cords and other tripping hazards.

1. What does mediation mean? Mediation is an alternative dispute resolution process that is different from going to court and having a judge (or jury) pick a winner and loser by determining the facts and applying the law to the facts. Mediation is also different from arbitration. At an arbitration, the parties typically pick a person (usually an attorney) to act like a judge and determine the facts and apply law. At an arbitration there is also a winner and a loser.

In mediation, the parties typically pick a third party neutral who will meet with the parties to help them find a solution to resolve a dispute. Because mediation requires the agreement of the parties to come to a resolution, it is not always successful. Mediation does not limit a party’s ability to file a lawsuit or arbitration.

In my experience, the cases that resolve at mediation are where both parties come with an open mind, are willing to listen and can consider compromise in order to avoid the cost and hassle of litigation.

In my experience, the cases that don’t resolve are usually because one of the parties has unrealistic expectations or opinion of their case, or that the matter should move forward based on “principle.”

2.   When is mediation required? Mediation is required for any non-exempt issues (see question 3) involving compliance with the rental agreement or non-exempt conduct of a landlord or a tenant within the facility. Please note that a facility is a manufactured home park or a floating home marina. Mediation can be initiated regarding a non-exempt dispute between a landlord and a tenant or between two or more tenants. Note that if the dispute is between two or more tenants, mediation must be initiated by the landlord.

3.   What types of disputes are exempt (i.e. not subject to mediation)? The following disputes are not subject to mediation:

(a) Facility closures consistent with ORS 90.645 or 90.671;

(b) Facility sales consistent with ORS 90.842 to 90.850;

(c) Rent payments or amounts owed, including increases in rent consistent with ORS 90.600;

(d) Termination of tenancy pursuant to ORS 90.394 (failure to pay rent), 90.396 (24 hour notices), or 90.630(8) (three strike provision);

(e) A dispute brought by a tenant who is alleged to be a perpetrator of domestic violence, sexual assault or stalking under ORS 90.445 when the dispute involves either the allegation or the victim of domestic violence, sexual assault or stalking;

(g) A dispute involving a person not authorized to possess a dwelling unit as described in ORS 90.403; or

(h) A dispute raised by the landlord or tenant after the tenancy has terminated and possession has been returned to the landlord (including ORS 90.675 (abandonments).

4.   How is mediation initiated? Mediation may be initiated by a tenant or a landlord. If a tenant or landlord initiates the mediation process, then the parties are required to participate (but see questions 7 and 8 below). If there is a dispute between or among tenants, a landlord must initiate mediation. 

5.   What if mediation is not currently included in my rental agreement? A landlord and/or tenant is required to mediate regardless of whether a rental agreement currently provides for mediation. If a rental agreement does not currently have such a process, SB 586 requires a landlord to unilaterally amend the rental agreement to include mediation. Specifically, ORS 90.510 (5) (what is required to be included in rental agreements) is amended to include in a rental agreement a section for mandatory mediation of disputes that states: “that the tenant or the landlord may request mandatory mediation of a dispute that may arise concerning the rental agreement or the application of this chapter, and the process by which a party may request mediation, including a link to the web site for the Manufactured and Marina Communities Resource Center with additional information about mandatory mediation of disputes.”

 6.  Who facilitates a mediation? Mediation may be requested through either: (1) Manufactured and Marina Communities Resource Center (“MMCRC”); or (2) a local Community Dispute Resolution Center (“CDRC”); or (3) a mutually agreed-upon and qualified mediator. Each party must cooperate with the CDRC or designated mediator in scheduling a mediation session at a mutually agreeable day and time, within 30 days of the initiation of mediation. Each party must attend at least one mediation session.

7.   Who has to participate in the mediation (i.e. does it have to be the owner)?  A landlord can designate a representative to participate in the mediation on the Landlord’s behalf (including a non attorney). The representative, however, must have the authority to resolve the dispute in the mediation.  Note that a tenant can also designate a representative.

8.   Do I have to reach an agreement in the mediation?  No. Neither party is required to reach an agreement in a mediation. Each party must attempt to mediate the dispute in “good faith.”  The law specifically says that the parties are not required to: (1) reach an agreement on all or any issues in the mediation; (2) participate in more than one mediation session; (3) participate for an unreasonable length of time in a mediation session; or (4) participate if the other party is using the mediation to harass the party or is otherwise abusing the duty to meditate.

9.   What would happen if a party failed to meditate in good faith? If a party fails to meditate in good faith by abusing the right to require mediation or uses mediation to harass the other party, the aggrieved party may recover an amount equal to one month’s rent from the violating party. Please note that this is a two way street. In addition, the other party has a defense to any claim brought by the violating party over the dispute involved in the mediation request, and may have the claim dismissed.

10. Can I use an admission in mediation at a subsequent trial? Conversely, can something I say be used against me? No. Mediation, and what is said during mediation, is confidential. Any statement made in a mediation is inadmissible. The purpose is to have an honest dialogue in order to encourage a settlement. Additionally, a mediator cannot be called as a witness.