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By:  Phil Querin, MHCO Legal Counsel

 

Always Assume The Matter Will Go To Court

 

While most legal notices will have their desired effect – e.g. the tenant will pay the rent, or maintain the space, or do what is necessary to comply – there are a small number of tenants who will fight. Of those who fight, some will secure an attorney. Most attorneys know that the easiest way to win is to attack the notice for some deficiency. If the notice is legally insufficient, the landlord’s case will fail without any examination of the merits of the case. The failure to win in court oftentimes leaves management with an unmanageable tenant.

 

Accordingly, when landlords and managers prepare notices, they should alwaysassume that the notice will be contested. This approach is the best protection landlords have in securing compliance in those cases where the tenant decides to fight. 

 

What does it mean to draft a notice as if the matter will go to court? It means that someone – the judge or jury - will be scrutinizing the document. It means making sure that everything is filled out correctly before mailing or delivering it. It means using a form, if one is available, rather than hand-drafting a notice. It means making sure that the proper form is used. In some circumstances, it may mean having your attorney review the form beforesending it out.

 

Always Use A Calendar

 

Virtually all legal notices in the landlord-tenant law give a certain number of days (or hours) for compliance. If a 30-day notice is mailed, three additional days must be added. This means that the deadline for compliance is at least 33 days. However, landlords and managers frequently count the day of mailing toward the 33 days. This is incorrect. Additionally, the 33d day is frequently identified as the deadline, when it should be the day afterthe 33d day. When notices are sent in the month of February, the 33-day calculation can get confusing, since there are only 28 days – or 29 in the case of leap years. Rather than trying to do it in your head, it is far better to physically count the number of days on a calendar. Don’t do it once. Count out the necessary number of days at least three times, just to make sure that you’ve gotten it right.

 

Don’t Cut Deadlines Too Close

 

Frequently, landlords and managers give only the minimal number of days for compliance. This can be dangerous. While the court will always throw out a notice that is too short, it cannot throw one out that is too long. Since the risk of error is so high in the calculation of the necessary number of days, it is always prudent to give a couple of extra days, just to be safe. Rather than giving just 33 days on mailed 30-day notices, give 35. The statute governing the calculation of days can be confusing. Rather than trying to remember each rule, it is far better to simply add a couple of extra days, in order to avoid the risk of miscalculation.

 

 

 

 

Avoid All Ambiguity

 

For all maintenance and repair notices, be as specific as possible. Assume that a judge or jury will be looking at it. Assume that they know nothing about the problem. Will they be able to understand it? For example, saying “Clean up your yard” will not be understood by a judge or jury to mean “Mow and edge the lawn, and remove the weeds and blackberry bushes.” While tenants may know, in their heart of hearts, exactly what the landlord is referring to when he says “Clean up your yard,” by the time the matter gets into court, the tenant’s attorney will argue that the notice was so vague as to make compliance impossible. 

 

On disrepair notices, landlords and managers should be sure to tell the tenant exactly what is wrong with the home and exactly what is necessary to remedy it. To say “fix the steps” will be argued as too vague. This cannot be said of a notice that says “repair or replace the broken steps and handrail located along the side of the sundeck behind the house.” 

 

Use Current MHCO Forms

 

Most forms have a copyright date at the bottom. Remember that the Oregon Legislature meets every two years and that a session never goes by without some changes being made to the landlord-tenant laws. There is a good chance that a 1996 form will not legally comply with those laws generated during the 2001 Legislative Session. Accordingly, if you have a form that is copyright dated before the latest legislative year, you should check to find out if it is still current. 

 

Make Sure You’re Using the Right Form

 

While this seems obvious, errors can occur. This is especially true when sending out notices to repair a home due to damage or deterioration. ORS 90.632 expressly governs this situation. There is a special form that must be used. The law requires that the form must contain specific notice to the tenant regarding their rights to obtain an extension of time for compliance if certain repairs, such as painting, are required by the landlord. Landlords and managers frequently confuse damage and deterioration situations with failure to maintain issues. If a house is in need of paint or the skirting is rusted and broken, a notice under ORS 90.632 must be issued, since this deals with damage or deterioration. However, this is not so, if the problem is simply maintenance, such as debris in the yard, or the home needs to be power-washed.

 

Be Careful Using 24-Hour Notices

 

While there are several good reasons to use a 24-hour notice, before issuing one, you should first ask two questions: (a) Is the conduct expressly prohibited by the park rules, and (b) is it of such a magnitude that it jeopardizes the health and safety of the tenants or managers in the park. If the violation is a breach of the rules, but is nota health or safety issue, it is better to give a 30-day notice for a rules violation. Here’s why: 24-hour notices are not curable. This means that the court will be faced with having to kick someone out of their home. If there is any doubt whatsoever, the judge or jury will normally come down on the side of the tenant. However, a 30-day notice is curable. If the conduct stops, there is no further issue for the landlord. If it is repeated within six months of the date of the 30-day notice, the landlord may issue a 20-day non-curable notice. If the landlord must file an eviction based upon the tenant’s failure to vacate after the issuance of a 20-day notice, the judge or jury will know that the tenant was first given an opportunity to avoid termination of the tenancy but they ignored it. 

 

Only Use Notices of Termination As A Last Resort

 

Several changes ushered in by the 2001 Legislative Session make it easier for landlords and managers to first seek voluntary compliance from a tenant before issuing notices of termination. The waiver statute is not as harsh as it once was. Additionally, since informal notices are not intended to be the basis of an eviction action, they do not need to be in any particular form. They can be mailed or hand delivered without the necessity of counting days. They do not have to threaten termination of the tenancy. They do not need to have a fixed deadline for compliance. They can say “please.” Perhaps most important, they make management look better, since they show that the landlord or manager “walked the extra mile” with the tenant, rather than simply terminating the tenancy. Most landlord attorneys would prefer to be in court with a tenant’s file that is thick with requests for voluntary compliance. By the time a legal notice of termination is sent, it should say to the judge or jury “this was the landlord’s last resort.”

 

Only Use Notices Of Termination If You Mean It

 

Landlords and managers who issue notices without enforcing them create the appearance they are “crying wolf.” If a notice is issued, say for failure to maintain the yard, but no enforcement occurs upon noncompliance, the notice loses importance. If this occurs park-wide, the minute an eviction is filed based upon a particular tenant’s refusal to comply, the argument occurs that management is engaging in “selective enforcement,” since it had never done it before.  Consistent with the “last resort” approach, discussed above, landlords and managers should reserve the legal notice of termination only for those cases in which they intend to follow through.

 

Conclusion

 

While legal notices of termination are a necessary precondition to filing an eviction, they can also prove to be management’s undoing, if not properly used. They should be reserved for those cases in which the landlord or manager has no other viable alternative, and when used, they mustbe properly prepared.  Indiscriminate use or sloppy preparation of notices of termination will do management more harm than good.

 

 

Answer.  I’m no expert on the Oregon fire code requirements or its exceptions.  I did some brief online research (the kind that you don’t want to rely on, but use as a starting point for further information). Here are my thoughts:

 

1. I have no idea what kind of “solution” the assistant fire marshal has in mind, but find it hard to believe the issue hasn’t arisen before. I’m inclined to believe there are work-arounds, if you push a little. This is an issue of public safety, why don’t the city and county install another fire hydrant? I assume cost – but is that a reason for your park to stop accepting homes? Your park presumably went through some form of land use approvals initially, and access to fire hydrants for the approved spaces was already considered.

 

2. Grandfathering is a possibility, but you’d want to confer with a land use attorney who has familiarity with the issue. When laws are passed there generally is some consideration for  businesses and structures that were established before passge. You want to explore this issue.

 

3. In reviewing the ordinances generally, I do see there are exceptions. You or your attorney may want to explore them.

 

4. I noticed that the distance from a hydrant can be expanded beyond the maximum footage when the home has a sprinkler system. If this is a new home, it may already have such a system. If not, the cost should be explored while, at the same time, verifying that the county will grant you an exception for a sprinkled home. (You might consider sharing some of the cost if necessary – it’s better than a vacant space.)

 

5. I also notice that measuring the fire hose distance is along the access road (obviously). I’m wondering if you could create a spur road to the less accessible homes.  I say this even though it might involve some cost to you. Why? Because knowing that your current roads couldhamper fire engine access might create some liability to you as the park owner.

 

6. Lastly, I cannot tell how helpful the assistant fire marshal was, but obviously she, or thefire marshal,  need to be contacted again, this time to explore solutions. As you note, this can’t be the first time the issue has arisen. I’m guessing you will find some alternative(s) that will work. And armed with this information going forward, I suspect you will have this issue at the forefront when placing additional homes in your park. Good luck! 

Member Follow Up:   I appreciate that Phil was able to research the circumstances a bit.  FYI, I stumbled through this frustrating situation and was able to resolve the problem just like Phil suggested.  We do have a home coming into the park which we are going to share the cost (around $5200) for the installation of a sprinkler system in a new 24x36 home.  The city, county and state fire Marshall have agreed to allow future homes into the park with the stipulation that they have sprinkler systems installed if in excess of 600’ from the hydrant.  In the event that we have someone wishing to have new home placed, they will have to bear all the cost. The poor woman that got into the middle of red tape in placing her home was as much as a “victim” of the changing regulations as we were.  Should we decided to buy and resell the home, the cost will include the fire suppression system. 

  Federal fair housing law doesn’t ban discrimination based on military or veteran status, but many state and local governments have gone beyond what’s required under federal law to ban discrimination based on veteran and military status.

Meanwhile, veterans with disabilities are covered under current federal law. Among other things, fair housing law requires communities to respond properly to reasonable requests for accommodations or modifications that are necessary to meet the disability-related needs of veterans and returning servicemembers.

In this month’s lesson, we’ll explain how fair housing and other civil rights laws protect military servicemembers and returning veterans from discrimination and offer six rules to help you comply with your legal obligations. 

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing based on race, color, religion, national origin, sex, disability, and familial status.

Veterans with disabilities are covered under the FHA’s ban on disability discrimination. Under the FHA, it’s unlawful to exclude or otherwise discriminate against prospects, applicants, and residents because they, or someone associated with them, has a disability.

The FHA defines disability as a physical or mental impairment that substantially limits one or more major life activity. According to HUD regulations, “physical or mental impairment” includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more specified body systems. So the definition covers both physical injuries—such as loss of a limb, traumatic brain injury (TBI), burns, and hearing loss—as well as mental or psychological disorders—such as post-traumatic stress disorder (PTSD) and depression.

The disability protections may apply even if the veteran doesn’t now have—or hasn’t ever had—a physical or mental impairment that substantially limits a life activity. The FHA’s definition of disability protects individuals who are “regarded as” having such an impairment. So a community could trigger a fair housing complaint for denying housing to a veteran based on preconceived notions about emotional problems faced by some veterans transitioning from military service to civilian life.

The FHA goes further to protect individuals with disabilities from discrimination by imposing affirmative duties to provide reasonable accommodations and modifications as necessary to allow veterans with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of covered multifamily communities.

Reasonable accommodations. The law requires communities to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. HUD defines “reasonable accommodation” as a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling. Common examples include a request to keep an assistance animal in a community with a no-pet policy or a request for a reserved parking space in a community that doesn’t have assigned parking.

Reasonable modifications. The law requires owners to permit applicants or residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises. Under the FHA, a “reasonable modification” is a structural change made to existing premises, occupied or to be occupied by a person with a disability, to afford that person full enjoyment of the premises. Communities must consider requests for reasonable modification not only to the interior of a unit, but also to lobbies, main entrances, and other public and common use areas of buildings. Examples include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for people in wheelchairs, adding a ramp to make a primary entrance accessible, or altering a walkway to provide access to a public or common use area.

6 RULES TO COMPLY WITH LAWS PROTECTING

VETERANS AND MILITARY SERVICEMEMBERS

Rule #1: Comply with Applicable State and Local Law

Check whether your community is subject to state and local laws that prohibit housing discrimination against military servicemembers or veterans.

Currently, eight states have adopted some form of fair housing protections based on military status, though the laws vary in the language used and whom they cover. In New York, the law prohibits discrimination based on military status, while in Massachusetts, the law prohibits housing discrimination against an individual because “such person is a veteran or member of the armed forces.” In general, these laws prohibit discrimination against active duty members and veterans of the armed forces, reserves, or state National Guard.

In some states, fair housing protections for veterans are tied to the nature of their discharge. In Illinois, the list of protected characteristics under the state’s human rights law includes military status as well as “unfavorable discharge from military service,” which generally applies to individuals who have been separated from the service with less than an honorable discharge, but it excludes those with a dishonorable discharge. In contrast, Washington’s fair housing law protects military status, but only honorably discharged veterans. The law in Rhode Island bans discrimination based on “military status as a veteran with an honorable discharge or an honorable or general administrative discharge,” or “servicemember in the armed forces.”

In the absence of statewide protections, there may be local laws protecting military status. Though Texas doesn’t list military status as a protected class, the law in San Antonio bans discrimination based an individual’s veteran’s status.

If subject to state or local laws banning discrimination based on military or veteran status, then you’ll need to review your policies and procedures to ensure compliance with legal requirements. It’s a good idea to ask your attorney about the specifics of the laws in your state and local area because of variations in the language used.

Coach’s Tip: Stay on top of proposed changes to antidiscrimination laws on the state and local level. In California, for example, the state legislators have approved a bill to ban housing discrimination based on veteran or military status; the measure was sent to the governor on Sept. 20, 2019. You should be able to get updates on what’s happening on the state and local level from your attorney or your local apartment association.

States with Laws Banning Discrimination Based on Military or Veteran Status

•      Connecticut
•      Illinois
•      Massachusetts
•      New Jersey
•      New York
•      Ohio
•      Rhode Island
•      Washington

Rule #2: Recognize Fair Housing Protections for Veterans with Disabilities

Regardless of whether military status is protected under applicable state or local law, federal fair housing law bans discrimination against veterans with disabilities. Under the FHA, disability means a physical or mental impairment that substantially limits one or more major life activities. In sum, the law protects 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.

Recent veterans report high rates of service-connected disabilities (that is, disabilities that were incurred in, or aggravated during, military service), according to the Equal Employment Opportunity Commission. About 29 percent of recent veterans report having a service-connected disability, as compared to about 13 percent of all veterans. Common injuries incurred by these veterans include missing limbs, burns, spinal cord injuries, PTSD, hearing loss, traumatic brain injuries, and other impairments. Other veterans leave service due to injuries or conditions that aren’t considered service connected.

Nevertheless, fair housing law doesn’t prevent communities from responding to actual incidents of dangerous or violent behavior by a resident, even if he has a disability. According to federal guidelines, the FHA doesn’t protect an individual whose tenancy would constitute a direct threat to the health and safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation.

TIME OUT!

What Is Traumatic Brain Injury?

Traumatic brain injury (TBI) is a significant health issue that affects servicemembers and veterans during times of both peace and war. The high rate of TBI and blast-related concussion events resulting from current combat operations directly affects the health and safety of individual servicemembers and subsequently the level of unit readiness and troop retention. The impacts of TBI are felt within each branch of the service and throughout both the Department of Defense (DoD) and the Department of Veterans Affairs (VA) health care systems.

In the VA, TBI has become a major focus, second only to recognition of the need for increased resources to provide health care and vocational retraining for individuals with a diagnosis of TBI, as they transition to veteran status. Veterans may suffer TBIs throughout their lifespan, with the largest increase as the veterans enter into their 70s and 80s; these injuries are often caused by falls and result in high levels of disability.

Active duty and reserve servicemembers are at increased risk for suffering a TBI compared to their civilian peers. This is a result of several factors, including the specific demographics of the military; in general, young men between the ages of 18 to 24 are at greatest risk for TBI. Many operational and training activities, which are routine in the military, are physically demanding and even potentially dangerous. Military servicemembers are increasingly deployed to areas where they’re at risk for experiencing blast exposures from improvised explosive devices (IEDs), suicide bombers, land mines, mortar rounds and rocket-propelled grenades. These and other combat-related activities put our military servicemembers at increased risk for suffering a TBI.

Source: Defense and Veterans Brain Injury Center (DVBIC)

Rule #3: Consider Reasonable Modification Requests by Veterans with Disabilities

Carefully consider requests by veterans with disabilities for reasonable modifications. Under the FHA, it’s unlawful to refuse to permit, at the expense of a person with a disability, reasonable modifications of existing premises as necessary to afford him or her full enjoyment of the premises.

The law requires you to consider modification requests by a current or prospective resident to make structural changes to the interior or exterior of units and to common and public use areas when there’s an identifiable relationship between the requested modification and the individual’s disability. For example, it would be unlawful to refuse to permit the installation of a ramp by a veteran who uses a wheelchair due to loss of a limb or other mobility impairment.

Before granting a request for a reasonable modification, you may require a description of the proposed modifications. You may also require the resident to obtain any building permits and that the work be performed in a workmanlike manner. You may not insist that a particular contractor perform the work.

Rule #4: Consider Reasonable Accommodation Requests by Veterans with Disabilities

If a veteran qualifies as an individual with a disability, then you may be required to grant a request for a reasonable accommodation in rules, policies, practices, or services as necessary to allow him an equal opportunity to fully enjoy his dwelling.

Requests for reasonable accommodations often involve assistance animals or parking, but communities may face a wide range of disability-related accommodation requests for exceptions to rules and policies. Examples include requests for live-in aides, transfers to different units, early lease termination, and allowing a cosigner on the lease. In general, communities are responsible for paying the costs associated with a reasonable accommodation as long as it doesn’t pose an undue financial and administrative burden.

It may be challenging to handle accommodation requests when the disability isn’t obvious. If the nature of the disability isn’t apparent, federal guidelines permit you to ask for reliable disability-related information to verify that the person meets the FHA’s definition of disability—that is, has a physical or mental impairment that substantially limits one or more major life activities. Likewise, you’re allowed to ask for more information if there’s no identifiable disability-related need for the requested accommodation.

You can’t reject an accommodation request simply because it imposes some financial costs on the community. Before rejecting a request because you think it’s too costly, you should compare the cost of the requested accommodation and your financial resources against the benefits to the disabled resident, and whether there are other, less expensive alternative accommodations that would effectively meet the resident’s disability-related needs.

Example: In 2015, a court ordered a California community to transfer a veteran with disabilities and his family to a more expensive unit—and to let them stay there until the end of the lease—as a reasonable accommodation for his disability.

The resident was an Army combat veteran who was diagnosed with PTSD. Due to ongoing construction near his unit, the veteran asked the community to transfer his family to another unit away from the noise as a reasonable accommodation due to his disability. According to the veteran, the construction noise triggered nightmares, anxiety, and other symptoms because it reminded him of gunfire, explosions, and screaming, making him feel as if he were in a war zone.

Allegedly, the community didn't dispute that he had a disability-related need to be relocated during the construction, but the parties disagreed whether he could pay his current rent to live in a more expensive available unit. The community offered to move the family to another unit at his current rent but wanted them to move back when the construction was completed.

The resident rejected the offer, asking for a court order to let them stay until their lease ended five months later. He argued that the construction noise had already caused significant distress, so letting them stay until their lease ended would offer a reprieve from his PTSD triggered by the construction.

The court granted his request, ruling that the cost of moving the family to the more expensive unit during the construction was a reasonable accommodation that wouldn’t cause an undue financial burden on the community. And the increased financial burden to let them stay there through the end of their lease was minimal [Holland v. The Related Companies, July 2015].

Rule #5: Don’t Reject Disability-Related Requests for Assistance Animals

Pay particular attention to reasonable accommodation requests for an exception to your pet policies to allow a veteran to keep an assistance animal because of a disability.

Fair housing law doesn’t prevent you from having a pet policy—as long as you don’t use it to keep out assistance animals. Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as extra fees, pet deposits, or additional rent charges. Whatever your policy on pets, it’s unlawful to deny an exception for an assistance animal needed by an individual with a disability to fully use and enjoy the community.

Example: In July 2019, HUD charged a Maine community and one of its agents with discrimination for denying a veteran with disabilities the right to keep his assistance animal. In his HUD complaint, the veteran alleged that he called the community in response to an ad on Craigslist. When he told the agent that he had a disability-related need to live with his assistance dog, according to the veteran, the agent allegedly responded, “absolutely not,” and said she regretted allowing a prior tenant to live with his assistance dog because other tenants then wanted to get pet dogs.

“No person with a disability should be denied the accommodation they need, especially individuals who served in the Armed Forces to defend our freedom,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work to ensure that housing providers meet their obligation to comply with this nation’s fair housing laws.”

Rule #6: Comply with Other Federal Laws Protecting Military Servicemembers and Veterans

Apart from your obligations under fair housing law, communities should know about—and comply with—two important federal laws protecting military servicemembers and returning veterans:

Servicemembers Civil Relief Act. The Servicemembers Civil Relief Act (SCRA), formerly known as the Soldiers’ and Sailors’ Civil Relief Act, is a federal law that provides protections for military members as they enter active duty. It covers issues such as rental agreements, security deposits, prepaid rent, eviction, installment contracts, credit card interest rates, mortgage interest rates, mortgage foreclosure, civil judicial proceedings, automobile leases, life insurance, health insurance, and income tax payments.

Among other things, the SCRA allows servicemembers to terminate, without penalty, leases and rental agreements before or during active military service under certain circumstances. The SCRA also bars communities from evicting military members or their dependents from their principal residence during the period of their active military service without a court order. Complying with the SCRA should be at the top of community concerns when it comes to dealing with military servicemembers. Failure to do so can lead to civil penalties or damages—even criminal liability.

Example: In March 2019, a Virginia-based property management company and related entities agreed to pay up to $1.59 million to resolve allegations that they violated the SCRA by obtaining unlawful court judgments against military residents and by charging improper lease termination fees, according to the Justice Department. The settlement is the largest ever obtained by the department against a landlord or property management company for violations of the SCRA.

The complaint alleged that from 2006 to 2017, the company obtained at least 152 default judgments against 127 SCRA-protected servicemembers by failing to disclose their military service to the court or by falsely stating that they weren’t in the military.

Under the SCRA, if a landlord files a civil lawsuit against a tenant and the tenant doesn’t appear, the landlord must file an affidavit with the court stating whether the tenant is in the military before seeking a judgment. If the tenant is in military service, the court typically can’t enter judgment until it appoints an attorney to represent the tenant, and the court must postpone the proceedings for at least 90 days. Landlords and lenders can verify an individual’s military status by searching the Defense Manpower Data Center’s free publicly available website or by reviewing their files to see if there are applications, military leave and earnings statements, or military orders indicating military status.

The complaint also alleged that the company imposed unlawful charges against servicemembers who attempted to terminate their leases early in order to comply with military orders. The SCRA allows military tenants to terminate a residential lease early if the servicemember receives deployment or permanent change of station orders or enters military service during the term of the lease. If a tenant terminates a lease pursuant to the SCRA, the landlord may not impose any early termination fee.

The Uniformed Services Employment and Reemployment Rights Act of 1994. In their role as employers, communities must comply with the Uniformed Services Employment and Reemployment Rights Act (USERRA), which prohibits employment practices that discriminate because of an individual's past, current, or future military status, service, or obligation.

In general, USERRA seeks to ensure that servicemembers are entitled to return to their civilian employment upon completion of their military service. Servicemembers should be reinstated with the seniority, status, and rate of pay that they would have obtained had they remained continuously employed by their civilian employer. In addition, USERRA provides protection for veterans with disabilities, requiring employers to make reasonable efforts to accommodate the disability.

• Fair Housing Act: 42 USC §3601 et seq.
• Servicemembers Civil Relief Act of 2003: 50 USC App. §501 et seq.
• Uniformed Services Employment and Reemployment Rights Act of 1994: 38 USC §4301 et seq.

 

 

Answer:  There are several issues that I see repeatedly.  Here are a few:

 

1. Managers not adequately papering their file before taking legal action against a resident.  Judges want to see that you’ve “walked the extra mile” with the resident, making every reasonable effort to bring them into compliance.  This means starting with a personal conversation with them about the problem and then making notes of the date, time, and matters discussed and the resident’s responses. Next try a note or letter without using a formal termination notice.  Only after it becomes apparent that you will have to go the formal route should you do so. 

 

2. Failing to act promptly when a resident violate the rules.  Although many things are not waivable, such as maintenance violations, some definitely are, such as unpermitted pets or occupants.  When there is a belief that the resident has either an unapproved pet or occupant, the resident should be contacted immediately.  With pets (assuming they are not in violation of the rules against breeds, or numbers), you want to promptly get them onto a Pet Agreement.  With occupants you should use the Occupancy Agreement and run a background check. (Make sure you don’t require a financial background check, since that is not permitted on occupants – only tenants.) If the resident delays in complying, get a 30-day notice issued and do not accept rent until the matter is resolved.  I have seen too many managers accept rent and work for months with the resident, not realizing that they are being lulled into believing the resident will ultimately cooperate – until it’s too late.

 

3. Failing to properly prepare a notice of termination.  Oregon law is very strict when it comes to the preparation of notices. Even the slightest error can be fatal. Make sure you’re using the correct MHCO form [e.g. don’t use a 30-day notice for failure to maintain under ORS 90.630, when you should be using a 30-day notice for repair and deterioration under ORS 90.632.]  When you draft the notice, have someone else read it for content and accuracy.  Then do so again yourself.  If you realize that you sent out an incorrectly prepared notice, send out a corrected one and state that it rescinds and replaces the incorrect one.  

 

4. Accepting residents you have doubts about.  Always do a “gut-check.”  If you think the applicant would be problematic, look closely at their application and references.  While you cannot and should not reject applicants arbitrarily, if they are on the cusp – i.e. you could legitimately accept or reject - give careful consideration to your decision and don’t let it be dictated by your desire to just fill a space. 

 

5. Not understanding the range of solutions when dealing with a resident.  By this I mean, don’t just fire out a notice as a knee jerk reaction to a violation.  A good example is a resident who is intoxicated and gets into a verbal altercation with another resident.  Say it gets out of control, and threats are made by the resident.   If this is unusual for the resident and out of character for him, don’t simply send a 24-hour notice.  The law is quite clear that you are notto use a 24-hour notice if another form of notice, e.g. a curable 30-day notice would work.  Remember, a repeat violation with six months following the date of the 30-day notice gives you the right to terminate with a 20-day non-curable notice.  Judges don’t like to terminate manufactured housing residents, given the drastic consequences.  You want to show the judge that you were not being heavy-handed, but tried the most rationale and reasonable approach first.

 

Over the past two years the Oregon Manufactured Housing Landlord Tenant Coalition reviewed sub metering statutes.  Last year a landlord-tenant work group drafted a number of significant changes to existing statute.  Those changes were adopted into the Landlord Tenant Coalition Bill (SB 586) and passed by the Oregon Legislature.  Attached is a review of those changes by MHCO Attorney Phil Querin.

Phil will be covering these changes during his presentation at the 2019 MHCO Annual Conference.

Answer:[Note: This answer presumes that the landlord has legally declared the abandonment, and following the statute regarding issuance of the 45-day letter. It also presumes that there are no liens on the home, since they would have prior right to determine what happens.]  

 

Interestingly, I find nothing in the abandonment statute [ORS 90.675]that prohibits the tenant from selling the home during the 45-day period following the landlord’s issuance of the 45-day letter. In fact, I believe that possibility was contemplated when the statute was drafted and/or amended.  [My answer might be different if the tenant sold the home after expiration of the 45-day letter, since the statute says that under that circumstance the home is “conclusively presumed” to be abandoned. To me this means that the tenant had nothing to convey.  But we’ll deal with that issue another time.]

 

So the real issue is not with the abandonment statute, but with ORS 90.680, which deals with on-site sales of the manufactured home.   In relevant part, the statute provides as follows:

 

1. If the new purchaser wants to live in the home, prior to a sale, they “… must submit to the landlord a complete and accurate written application for occupancy of the dwelling or home as a tenant after the sale is finalized”;
2. They may not occupy the space or the home until after the prospective purchaser is accepted by the landlord as a tenant;
3. If the sale is not by a lienholder [it wasn’t] the prospective purchaser “…must pay in full all rents, fees, deposits or charges owed by the tenant *** prior to the landlord’s acceptance of the prospective purchaser as a tenant”;
4.  The landlord must accept or reject the prospective purchaser’s application within seven days following the day the landlord receives a complete and accurate written application. If a tenant has not previously given the landlord the 10 days’ notice, this period is extended to 10 days;
5. The landlord may not unreasonably reject a prospective purchaser as a tenant;   
6. The following apply if a landlord does not require a prospective purchaser to submit an application for occupancy as a tenant:

· The landlord waives any right to bring an action against the tenant under the rental agreement for breach of the landlord’s right to establish conditions upon and approve a prospective purchaser of the tenant’s dwelling or home; 

·  The prospective purchaser, upon completion of the sale, may occupy the dwelling or home as a tenant under the same conditions and terms as the tenant who sold the dwelling or home; and 

· If the prospective purchaser becomes a new tenant, the landlord may not impose conditions or terms on the tenancy that are inconsistent with the terms and conditions of the seller’s rental agreement unless the new tenant agrees in writing.

 

So in this case, the landlord should immediately contact the new buyer, notify them that if they intend to occupy the home, they must submit an application for tenancy and bring current all unpaid accrued rents, etc. They may not occupy the home or space until they have done so and been approved as a tenant.  

 

If the purchaser is a dealer, or intending to flip the home to another prospective buyer/tenant, these same requirements would apply. Although this may require a legal opinion before proceeding, if the current buyer intends to remove the home, I would consider asserting a possessory lien on the home [i.e. it cannot be removed until payment of the past due rents, etc.]  Note this is not “legal advice” so you must secure an opinion from your own counsel.  

The owners and managers of a single-family rental home in Idaho recently agreed to pay $15,000 to settle allegations that they violated fair housing law by refusing to rent the large home to a married couple because they have more than four children.

The federal Fair Housing Act makes it unlawful to deny or limit housing because a family has children under the age of 18, make statements that discriminate against families with children, and impose different rules, restrictions, or policies on them.

The settlement resolves a HUD charge, alleging that the homeowners discriminated against a family attempting to lease their 2,600 square foot, four-bedroom rental home because they have seven minor children. Specifically, HUD’s charge alleges that when the couple met with the property manager about renting the home, he told them that the owners had set a limit of four children for the home. The charge also alleges a policy restricting the number of children was written in the rental contract.

“Persons attempting to provide a home for their family should not have their housing options limited because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s action will hopefully serve as a reminder to all housing providers of the importance of meeting their obligations to comply with the requirements of the Fair Housing Act.”

 

Dalila Molina set her sights on living near Northwest Portland’s high-end Pearl District. The 25-year-old human resources specialist knew she’d have to pay higher rent than in other corners of the city or the suburbs, but she could walk to work and avoid commuting time and costs.

In October, she found a two-bedroom apartment in a 1908 building that doesn’t have everything she wanted, but it’s in the right location and she appreciates the old-fashioned crown molding in the living room, bay windows and a bathroom with a clawfoot tub and hexagon tiles.

 

“I took my time finding the right place,” said Molina, who would get alerts on her phone when there was a vacancy in her price range in her desired area. “Everything’s so available online but I had to act fast."

Two new studies on Portland rentals show that prices are holding steady, but available units are advertised for only 23 days, while a typical U.S. renter spends about three times that searching for an apartment.

In October, Portland’s rents took a 0.8% dip, but after a decline last December and a seasonal spike in September, year-over-year rents are flat with a 0.4% growth, according to ApartmentList.com, a rental platform with more than 5 million listings across the country.

The average year-over-year rent growth in Oregon and in the U.S. is 1.4%, said Olyvia Ruhlmann of Apartment List.

Currently, median rents in Portland are $1,337 a month for a two-bedroom unit, the least expensive within the metro, followed by Forest Grove ($1,450) and Vancouver, Washington ($1,680).

 

The highest: Rents have risen in nine of the metro’s largest 10 cities in which Apartment List collects data.

Hillsboro is the most expensive with a two-bedroom median of $2,098 and the fastest year-over-year growth at 3.7%, while Canbyexperienced a 4.5% decline in October, marking a 0.4% drop year-over-year.

 

The median rents in Portland for a one-bedroom apartment stand at $1,133 in the first year Oregon capped rent increases at 7% a year plus the rate of inflation, which for 2019 amounts to 10.3%. For 2020, rent increases will be capped at 9.9%.

Portland’s median two-bedroom rent is above the national average of $1,191, but is more affordable than Seattle ($1,686), San Francisco($3,120) and Los Angeles ($1,760).

 

An analysis by real estate database Zillow found three-bedroom units in Portland are in high demand and last just 16 days before they’re rented, while four-bedroom apartments linger for 25 days.

Studio and two-bedroom units are typically listed for rent on Zillow for 22 days while a one bedroom lasts for 24 days.

Since a typical U.S. renter spends about 2.5 months searching for an apartment, “in the time it takes renters to actually find an apartment, it’s possible that the inventory of available units in their area has completely turned over twice,” according to Zillow Group’s 2019 Consumer Housing Trends Report.

 

Zillow, which offers online applications, leases and rent payment tools, found that in a fast-moving market with stable rents like Portland, a typical renter contacts nearly five landlords or property managers, tours about three units and submits more than three applications.

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

 

The tenant, someone in the tenant’s control or the tenant’s pet commits any act that is outrageous in the extreme, on the premises or in the immediate vicinity of the premises. For purposes of this paragraph, an act is outrageous in the extreme if the act is not described in paragraphs (a) to (e) of this subsection, but is similar in degree and is one that a reasonable person in that community would consider to be so offensive as to warrant termination of the tenancy within 24 hours, considering the seriousness of the act or the risk to others. An act that is outrageous in the extreme[1]is more extreme or serious than an act that warrants a 30-day termination under ORS 90.392. [Emphasis mine.]

 

Unfortunately, in close cases, what is “outrageous” is frequently in the eyes of the beholder.  Thequestionis wasthistruly anisolated incidentforwhichyoucouldgivea30-daynoticethathecouldcurebysimplynotrepeatedwithin thefollowing30days?  Ifherepeatedit thereafter[i.e.within6monthsfollowingthedateofthe30-daynotice]youcouldterminatewitha20-day,non-curable,notice.

 

 

Inmakingadecisionwhetherto doa24-hournotice,whichisnon-curable,ora30-daynotice whichis,youshouldconsiderthefollowing factors:

1.   Hasthiseveroccurredbefore?

2.   Howlonghasthe resident beeninthepark?

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

4.   Doesthe resident haveadrinking/emotionalproblemonaregularbasis?

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

6.    Was actual violence involved?

 

Ifyou genuinely believe that a30-daynoticewouldwork,it will still provide you with the opportunity to issue a 20-daynon-curablenoticeifhefell offthewagonagain- eitherwithinthe30daysorwithin180daysfollowingthedate of issuance of the 30daynotice. Remember that the 24-hour notice is final, whereas the 30-day notice is not, because it can be “cured.”  This may be a case where you should issue the 30-day notice, and make it clear to him that the next time will be final.   In any event, the conduct should not be ignored – a notice should issue.

The Justice Department recently filed a lawsuit alleging that the owners and managers of residential rental housing in Honolulu, Hawaii, refused to rent to families with children, in violation of federal fair housing law. The lawsuit alleges that the three properties are operated as student housing for post-secondary students.

Specifically, the complaint claims that at least since 2015, the defendants discriminated against families with children by: (1) refusing to rent or to negotiate for the rental of the three properties on the basis of familial status; (2) steering prospective renters with children who inquired about housing away from the properties to a separate property management company; and (3) making discouraging and other discriminatory statements to potential renters with children who inquired about housing, including that the housing wasn’t “suitable” or the right “fit” for families with children.

The Legal Aid Society of Hawaii brought this matter to HUD’s attention after conducting testing that, as the complaint alleges, showed discrimination against families with children in connection with the defendants’ properties. The complaint contains allegations of unlawful conduct; the allegations must be proven in federal court.

“Owners and managers of rental housing must ensure their housing is open to families with children,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said in a statement. “The Fair Housing Act requires it, and the Justice Department will continue both to enforce the Act vigorously and to seek relief for families victimized by unlawful discrimination.”