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 Two states away, Kimberly, a park owner, and her park manager were driving through her park, Maple Creek, and pulled over to stop and pick up a coke can. It was unusual to have to stop and do this. But that was due to the consistent actions of residents being held accountable for keeping their homesites and home exteriors clean and in good repair. It had taken over two years to get the 400 residents onboard, but now the community swelled with pride of ownership.

            What do Eleanor’s Whispering Maples and Kimberly’s Maple Creek communities have in common? Maples! No, that’s not it. One key common thread is good resident relations. Another common trait is the owners’ and managers’ mission of having the cleanest communities and best residents in the market. What does this have to do with profitability? The answer is pretty much everything. 

            How did the owners and managers get to a high level of compliance in rent collections and home appearance? Eleanor and Kimberly understood that to attract and retain the best residents, they needed to start with their websites. For prospective residents, the pictures, testimonials, and ease of finding information made these parks stack up well against other housing options. Prospective residents want to feel good about telling friends, family and co-workers, about where they will be living. Existing tenants liked the resident section of the website where they could find answers to their questions, copies of the leases and rules, and even a payment portal. They also like the compliments about their community they received from family and friends looking at pictures from the website. 

            The secret of the website was the number of prospects that came from and were directed from ads on Facebook and other social media, as well as, print media that directed prospects to the website for more information and online applications. These ads increased traffic to the website which increased the number of applicants. This increased applicant pool allowed the managers to pick the best possible tenants from the ever-increasing pool of prospects, thus making the best rental decisions possible. You can guess (and accurately, too) that making the best possible rental decisions helped fill vacant sites and vacant homes quickly, and with quality tenants. It was a win/win. 

            The mindset of these owners is that of abundance; there are plenty of credit worthy, conscientious, pride-of-home-appearance-having prospects (whether it’s a home buyer or renter). It is essential, though, to increase the applicant pool. How did they do this? One tactic was lots of quality community pictures of the homes (ones actually in the park, not just stock images), the signage, landscaping, and even the residents. They realized most people are visual. More pictures, not less, especially of the homes, is key.

            A tactic of Julio Jaramillo, founder and CEO of Evergreen Communities with 4,000 sites in 8 states, is for every community manager to talk to three park residents every day. Because Julio’s managers are compensated for home sales and home rentals, this practice makes the residents feel acknowledged and listened to. As a result, Julio’s managers sell and lease more homes. The managers are also very aware of any issues in the community and can get ahead of issues before something even becomes a problem – such as moving tenants.

            Successful community owners and managers find it helpful to have a vision. Helen Keller was asked, “Can you think of anything worse than being blind?” “Yes” she said, “Being able to see but having no vision.”

 Getting Real:

            There probably are some community owners and managers that are just naturally happy people. They wake up in the morning and can’t wait to get to the community. Statistically, this number might be as high as 20%. Like Warren Buffet, they tap dance into work each day.  For most people, it takes some concentration, mental gymnastics, and a pot of coffee, to keep their eyes on the prize. 

Building a Resident Relations Vision:

1. Owners and managers need to have an ‘abundance’ mindset. Today, because apartment rents and house prices have appreciated so much, many prospective community residents and current residents don’t qualify to buy a site-built house or rent a newly built apartment. The MH Community business has plenty of people that want what your park has to offer.

2. Current residents that consistently pay late, or have to be filed on, may have to find other housing. In our communities, we offer a free listing service. It’s available to all but it is meant to help the residents, who won’t comply with timely rent or home & lot rules, relocate as painlessly as possible. Al, an owner of 2,000 sites, offers a cash for keys program for residents that won’t comply. The last thing anyone wants or needs is an eviction on their record.

Arty is a park manager at Green Meadows, a medium sized park. He felt exhausted and annoyed with the park residents and their homes. “And it’s only 11 am on Monday” he laments. A whole week lay in front of Arty, of grinding it out – collecting rents, confronting non-payers, “Noticing” ungovernable residents, mowing and trimming their homes, since “they wouldn’t just do it”. Arty wondered if he should quit and look for another job, maybe a greeter at Wally World.

The Benefits of Resident Relations:

• Resident Relations keeps managers and owners energized, focused on achieving initiatives. Whether it’s 100% rent collections, pet policy enforcement, home compliance, 100% occupancy or park expansion, they (to quote Walt Disney) “Keep moving forward.”
• Resident Relations involves proper marketing, tenant selection, and ongoing manager training. Resident Relations should never be at the bottom of the to-do list; it NEEDS to be a daily habit of every manager and owner.
• Resident Relations is a measurable quality. It is quantifiable in terms of:
  • • Profitability
    • Return of Investment (ROI)
    • Home Compliance Rate
    • Increased Applicant Pool
    • Increased Rental Rates and Home Sale Prices

You can see it. There even is a waiting list of prospective residents. There are no rundown POH’s nor abandoned homes that need to be removed. Let’s stop calling these ‘handyman specials” and allowing them to sit there month after month. We all know that the odds are slim that an actual handyman is coming along to buy, fix up and move into one of these homes.

• Mission-oriented managers and owners are players, not victims. Properly trained owners and managers understand the vital role housing plays in the lives of their residents. They care about being accountable to the mission and initiatives of their parks. They are players, strategizing for the best outcomes for maximizing the bottom line. “Victim” owners and managers can’t grasp why the residents don’t pay on time, and why their yards are not mowed. They blame the tenants, the city, the economy… As time goes on there are more homes out of compliance and more late payers. 
• Let’s play a game… (this is a spin on the Florida man birthday Google search game) You type in affordable housing, your birthday (affordable housing, January 15^th) in Google then click the news tab. How many articles did you get? Most towns and cities have weekly newspapers articles and TV news reports on the lack of affordable housing. It’s a key topic of discussion for local, state, and national elections. Mobile home parks can be an important part of the solution for affordable housing, but not if the political candidate or their staff drive through a park and see unsightly abandoned homes, tires stacked in yards, or weeds three feet high. Resident Relations are the face of mobile home parks.

Three Things Owners and Managers Can Start Doing to Have the Fastest Resident Relations Outcomes:

1. Review your mission, initiatives, and goals for the year. It is not too late to get going on the things that have fallen through the cracks. Your mission, initiatives and goals need to be in writing, and you need to look at them every morning.

2. Contact three residents every day. This means if you have a 200-site park, you have called each resident at least once in the past three months. (21 workdays per month, times 3= 189)

3. Every resident, prospective resident, local official, political candidate, journalist ought to be able to look at your website (your virtual front door) or drive the community and have a favorable impression. If the homes in your community are in compliance, what might the prospective tenants think when they drive through? Guaranteed, they just drove through a competing park, where the rules have not been enforced.

 

The good news is that mobile home parks are filling up. This is the time to be selective in renting and selling homes. Check out the tenants’ budget. Can they afford to live in your community? Ideally 30% or so of their gross income is their budgeted housing cost. If the homes in your community are out of that price range, don’t rent to them. Being selective with your prospects and keeping your homes in compliance is good for your park’s image and for your stress level!

Joanne Stevens is a national Mobile Home Park broker.  Sign up for her free industry E-newsletter at www.joannemstevens.com  To request a mailed copy of her newsletter, contact Joanne at: joannestevens@iowarealty.com M: 319-310-0641 / O: 319-378-6786 

 

 

In this article, MHCO tackles a challenging problem: resident hoarding. In multifamily housing communities, extreme cases of hoarding can pose serious health and safety hazards—not only to anyone living in the affected unit, but also to neighbors who may share walls, ceilings, floors, hallways, and even HVAC systems. Potential problems include fire hazards, mold and other environmental dangers, pests and vermin, foul odors, and even structural damage. 

Unfortunately, it’s often difficult to detect because people with a hoarding problem rarely seek help on their own. Conditions inside the unit may not come to light until an emergency crops up—or conditions inside seep out into neighboring units or common areas. By the time it’s discovered, the problem may be so out of hand that your first impulse is to order the resident to clean up immediately or move out.

But that approach could land you in fair housing trouble. Hoarding disorder is a recognized mental health impairment, so the resident would probably qualify as an individual with a disability under fair housing law, triggering your responsibility to try to work out a reasonable accommodation to allow him to continue to live there. There are limits to your obligations toward the resident, but you’ll have to tread carefully—and document your efforts to work out a resolution—to prevent or defend a potential fair housing complaint.

In this lesson, we’ll explain how fair housing law may protect residents engaged in hoarding behavior, as well as the limits to those protections. Then, we’ll offer seven rules to help you comply with fair housing laws when dealing with a hoarding problem. 

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans discrimination against individuals with disabilities. The FHA defines disability as a physical or mental impairment that substantially limits one or more major life activities. The law applies to individuals who have a disability, as well as those who are “regarded as” or have a “record of” having a disability—even though they may not in fact have a qualifying disability under fair housing law.

Hoarding is more than simply having too much clutter. It’s a recognized mental health disorder, characterized by saving things that others may view as worthless, and persistent difficulty in getting rid of or parting with possessions, which leads to clutter that disrupts an individual’s ability to use their living space, according to the American Psychiatric Association (APA). At some point, it’s likely that you’ll be confronted with a hoarding problem, which may affect 2 to 6 percent of the U.S. adult population, according to the APA.

TIME OUT!

What Is Hoarding Disorder?

In 2013, the APA recognized hoarding disorder as an official psychiatric diagnosis in its Diagnostic Statistical Manual V (DSM-V). Specific symptoms for a hoarding diagnosis include:

• Lasting problems with throwing out or giving away possessions, regardless of their actual value.
• The problems are due to a perceived need to save the items and distress linked to parting with them.
• Items fill, block, and clutter active living spaces so they cannot be used, or use is hampered by the large number of items (if living spaces are clear it is due to help from others).

Hoarding causes major distress or problems in social, work, or other important areas of functioning (including maintaining a safe environment for self and others). Many people with hoarding disorder also experience other mental disorders, including depression, anxiety disorders, attention deficit/hyperactivity disorder, or alcohol use disorder.

Source: APA

The inclusion of hoarding as an official psychiatric disorder in the DSM-V confirms that hoarding is a mental disability, says fair housing attorney Lynn Dover. Federal and state fair housing laws protect people with mental disabilities from discrimination and require housing providers to make reasonable accommodations when necessary to afford a resident with a disability an equal opportunity to use and enjoy her housing, she says.

In hoarding cases, for example, the community may be asked to hold off on eviction proceedings to allow enough time for the resident to remedy the health and safety issues. Assuming it’s safe to do so, the community may have to grant the request—made by or on behalf of the resident—because there’s an identifiable relationship between the requested accommodation and the resident’s disability.

Nevertheless, there are limits to your obligations to grant reasonable accommodations even if a resident qualifies under the disability provisions. For one thing, the FHA doesn’t protect an individual with a disability whose tenancy poses a direct threat to the health or safety of others or substantial physical damage to the property of others, unless the threat may be eliminated or significantly reduced by a reasonable accommodation.

Furthermore, the law doesn’t require you to grant an accommodation request if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. But tread carefully: Even if the resident’s request is unreasonable, communities are required to engage in an “interactive process” with the resident to try to work out an alternative accommodation that would meet his disability-related needs without posing an undue burden on the community or require a fundamental alteration of its operations.

7 RULES FOR RESPONDING TO A HOARDING PROBLEM

Rule #1: Watch for Signs of Hoarding

Train your staff to be vigilant for any signs of hoarding behavior by your residents. Residents engaged in hoarding behavior rarely come forward on their own, so you may not be aware of a hoarding problem until its effects seep outside the resident’s unit and into hallways or neighboring units.

The observations of staff members are crucial to detect hoarding problems. During their routine duties, your leasing, maintenance, housekeeping, or security staff may notice excess clutter or noxious odors in hallways and common areas that seem be emanating from a particular unit. Train staff to report such problems immediately, so that you’ll be able to address the issue at the earliest stage possible.

For the same reason, pay attention to similar complaints from neighbors, particularly when the source of the problem seems to be next door or on the floors above and below a particular unit. Hoarding isn’t limited to common possessions, such as clothing, newspapers, or plastic bags; some people hoard garbage and rotting food—even animals or human waste products. Any and all can lead to serious health and safety problems involving fire hazards, impaired air quality, mold growth, pest infestation, and structural damage, which can spread rapidly and lead to serious injury or disease without prompt attention. 

Rule #2: Investigate Potential Hoarding Problems

As soon as potential hoarding problems come to your attention, inspect common areas and inside the units of residents who have lodged complaints. Make an effort to determine whether complaints all seem to be pointing to a particular unit.

The next step is to contact the resident whose unit appears to be the source of the problem. Your right to enter and inspect a resident’s unit depends on a variety of factors, including the seriousness of the reported problem, state and local sanitary codes and landlord-tenant laws, the provisions of the lease, and other legal requirements.

In general, communities may enter the units of residents only with reasonable advance notice and during normal business hours, except in cases of emergency. Be sure to document that you have complied with applicable requirements, which will be particularly important if the resident in fact has a hoarding problem and denies you entry.

Once inside, document the conditions, particularly focusing on any violations of lease provisions and applicable health and safety codes. Make notes about the nature and cause of any noxious smells, pest infestations, and other problems that have spread outside the unit. Attempt to take photos since descriptions of hoarding conditions can go only so far to show the seriousness of a hoarding problem. However, if the resident is adamant about not having photos taken, it’s best not to push the issue since the goal is to gain the resident’s cooperation in remedying the unit’s condition.

Whatever you find inside the unit, be sure to treat the resident with dignity and respect. That may be challenging if confronted with the telltale signs of hoarding: an accumulation of large amounts of clothing, papers, bags, newspapers, blocked exits, rotting food, signs of rodent or pest infestation, large numbers of animals, or human or animal waste. Unless you maintain a neutral, nonjudgmental demeanor, you could inadvertently make matters worse by exacerbating the resident’s distrust and resistance to change.

Here’s what you shouldn’t do: Take matters into your own hands to clear away the resident’s possessions. You might believe that you’re helping the resident to conquer a problem that she’s been promising to rectify for years, but that approach can backfire unless the resident gives you the authority to do so, warns F. Willis Caruso, Esq., Clinical Professor Emeritus of the John Marshall Law School Fair Housing Legal Support Center and Clinic.

Rule #3: Listen for Reasonable Accommodation Requests

When resident hoarding comes to light, follow your standard policies and procedures for addressing safety and health problems. Comply with notice requirements dictated by the lease and applicable law if conditions inside the unit are bad enough to rise to the level of a direct threat that can’t be eliminated or sufficiently mitigated by a reasonable accommodation.

Before taking legal action against a resident with a hoarding problem, determine whether the resident qualifies as an individual with a disability under fair housing law. Obvious signs of unsafe and unsanitary hoarding are usually enough to suggest that the resident has hoarding disorder—a recognized mental impairment. As a result, fair housing law may require you to grant a reasonable accommodation that would give the resident time to clean out the unit to preserve her residency.

Dover says it’s rare for residents with hoarding issues to specifically ask the owner or management for an accommodation. Nevertheless, you should listen for reasonable accommodation requests, which may be framed as something the resident “needs” or “wants” because of a disability. In hoarding cases, it may be a request from the resident, a family member, or an advocate to delay legal action against the resident to give him more time to clean out the unit.

In most cases, that’s enough to qualify as a reasonable accommodation request since the FHA doesn’t require that the request be made in a particular manner or at a particular time. According to federal guidelines, a resident or applicant makes a reasonable accommodation request whenever he makes it clear to the housing provider that he’s requesting an exception, change, or adjustment to a rule, policy, practice, or rule because of a disability.

Caruso emphasizes the need to train staff on how to respond to reasonable accommodation requests. It’s a good idea to have a standard form for detailing requests for reasonable accommodations, but you could get into trouble if the staff isn’t trained on how to use it. Training should also cover what to do with the request, including when to go up the chain of command when dealing with hoarding and other challenging issues, he says.

Rule #4: Evaluate Reasonable Accommodations to Remedy Hoarding Problems

Follow your community’s policies and procedures if a resident or someone on his behalf requests a reasonable accommodation to address hoarding problems within a unit. Depending on the seriousness of the health and safety risks involved, you may not have to grant the request—but you do have to take it seriously by responding formally and promptly. Under HUD guidelines, an undue delay in responding to a request may be deemed a failure to provide a reasonable accommodation.

Fair housing advocates take the position that before trying to evict a resident whose mental disability is causing him to violate the terms of his lease or community rules, good faith efforts must be made to accommodate his disability even if he hasn’t specifically asked for an accommodation, according to Dover. This generally requires the resident be given opportunities to come into compliance so he can retain the residency.

Dover offers these examples of potential accommodations:

• Meeting with the resident to identify health and safety issues that need to be addressed in the unit;
• Establishing goals and timelines with the resident to address the health and safety issues;
• Setting periodic dates for follow-up visits to the unit to monitor compliance;
• Memorializing the goals, timelines, and re-inspections in a written agreement that the resident signs;
• Providing the resident with a list of community resources that can assist persons with hoarding issues;
• Working with a fair housing and/or mental health advocacy group or attorney assisting the resident to develop a plan to bring the unit into compliance;
• Extending time for compliance with a legal notice that has been served or entering into a stipulation in an eviction that gives the resident a final opportunity to address the health and safety issues and retain the tenancy.

When dealing with a hoarding situation, the focus should only be on solving legitimate health and safety issues rather than on trying to achieve ideal housekeeping habits, says Dover. Even if the resident meets minimum health and safety standards, you should recognize that the unit may not meet your expectations of an “optimal condition.” It’s also important to realize that residents with hoarding issues may not recognize they have the problem (or the severity of the problem) or be equipped to resolve the hoarding problem on their own, she says.

If health and safety issues are initially resolved, you should be aware that, even with treatment, hoarding disorder has a high rate of recidivism, says Dover. This means that a resident with hoarding issues may “slip” and re-hoard again in the future. Therefore, any written agreement made with the resident should include language that provides for periodic unit “check-ins” to monitor ongoing compliance after the health and safety issues have been remedied and a specified time period for correction of any future health and safety issues.

Rule #5: Engage in an Interactive Process to Resolve Hoarding Problems

Even when a resident qualifies as an individual with a disability, a request for an extended period to clean the unit may be unreasonable if conditions inside pose immediate or serious health and safety risks.

Fair housing law doesn’t require communities to grant accommodation requests that are unreasonable. Dover says that accommodation may not be required, and termination of the tenancy may be possible, if:

• The person is a clear, direct, and immediate threat to the health and safety of other residents or the property and there’s no accommodation that will eliminate or sufficiently mitigate the health and safety issues;
• There are serious health and safety issues that can’t be mitigated through accommodation;
• The resident has caused serious monetary damage to the unit and won’t reimburse the landlord for the cost to repair the unit; or
• The resident won’t engage in the accommodation process or cooperate to bring the unit back into compliance.

Nevertheless, tread carefully before rejecting a requested accommodation on the grounds that it’s unreasonable. HUD says you should discuss with the resident whether there’s an alternative accommodation that would effectively address his disability-related needs without posing an undue burden on the community.

For example, you may work out a plan with time frames for resolving lease violations, but you may have to be flexible if the resident fails to remove enough belongings to remedy valid safety and health concerns. It may take multiple attempts, extended deadlines, or outside help to alleviate problems inside the unit. And you may have to be satisfied with less than “broom clean” conditions; if the resident remedies health and safety problems, it may be unreasonable to impose overly stringent standards.

To keep things on track, the plan should allow for periodic unit visits during the accommodation process—as often as once a month, if warranted. Hoarding is notoriously difficult to treat, and recurrences are common, so periodic unit visits to monitor compliance may help ward off future problems. But it’s important to make sure that the frequency of these visits isn’t overly intrusive. In most situations, the visits after the resident has remedied the unit shouldn’t be more frequent than quarterly at most. The agreement should also spell out consequences for failing to maintain the unit as agreed—for example, by giving you the right to serve a new legal notice or reinstate eviction proceedings if the resident doesn’t live up to her agreement to maintain the premises.

Rule #6: Proceed with Eviction if Interactive Process Fails

If the resident ignores warnings about lease violations or otherwise fails to address hoarding problems, you may initiate proceedings to recover possession of the unit. Be sure to document your compliance with notice provisions and other legal requirements imposed by state and local law. It’s also important to have documentation of the condition of the premises, including photos, if available; descriptions; and witness testimony.

Even after legal proceedings have commenced, however, you should be prepared for an 11th-hour request to delay eviction proceedings to allow the resident more time to clean up the premises. Because people with hoarding disorder are resistant to parting with their possessions, it often takes official legal proceedings that threaten their continued residency to prompt them to do something to remedy the problem.

Nevertheless, there are limits on your obligation to accommodate residents whose hoarding behavior poses ongoing safety and health hazards to other residents. Fair housing law doesn’t protect anyone, with or without a disability, who poses a direct threat to the health and safety of others or whose behavior would result in substantial physical damage to the property of others, if the threat can’t be substantially reduced or eliminated with a reasonable accommodation.

To determine whether a resident with a hoarding problem poses a direct threat, the community must make an individualized assessment based on reliable, objective evidence, such as current conduct or recent history of overt acts. HUD says that the assessment must consider:

• The nature, duration, and severity of the risk of injury;
• The probability that injury will occur; and
• Whether there are reasonable accommodations that will eliminate the direct threat.

Because of these and other requirements, Dover says it’s a good idea to seek legal advice before taking any action to terminate a tenancy if hoarding issues may be involved. No two hoarding situations are alike, so each situation involving a resident with hoarding issues requires analysis based on the facts of the particular case. If not handled appropriately, it could result in a fair housing complaint being filed against you, the property, and the company, she warns.

Rule #7: Recognize that Residents May Get Multiple Chances to Remedy Hoarding Problems

Even when you’ve proven that the resident’s hoarding justifies eviction, you should be prepared for further delays under certain circumstances. No matter how patient you’ve been with efforts to address hoarding problems, the courts may be willing to put an eviction on hold to allow more time to remedy the situation.

Example: In November 2019, a court ruled that a New York cooperative community proved that hoarding conditions in a resident’s unit justified her eviction but put the matter on hold to give her guardian more time to clean it up or move her to another residence.

The resident was an elderly woman who had lived at the community for 10 years. In 2017, the landlord issued a termination notice and later initiated eviction proceedings because conditions in her unit amounted to a nuisance. The landlord claimed that the resident violated the lease by keeping her unit in poor condition by amassing clutter in the form of garbage, books, and newspapers, resulting in infestation, unreasonable odors, and an increased risk of fire.

Nearly a year later, a court appointed a guardian with authority to access her unit, arrange for a heavy-duty cleaning, and if necessary, remove the resident from the premises to complete the cleaning. The court later expanded the guardian’s authority to defend the resident in housing court proceedings and arrange for heavy-duty cleanings and home care services.

After multiple attempts to resolve the matter, the case went to trial in 2019. An employee of the management company testified that strong odors of urine and garbage continued to emanate from the resident’s unit as recently as the day before the hearing. Although a cleaning had occurred in 2018, the employee said that it alleviated the odors for only a few weeks.

A maintenance worker also testified that he was in the resident’s unit twice that year to inspect her air conditioning units. He said he observed piles of garbage, clothing, papers, and other debris that made navigating the unit difficult and that there were extreme odors of urine and feces. He produced photos, which showed garbage and clutter strewn throughout her unit.

The resident’s next-door neighbor also testified about pungent odors emanating from the resident’s unit and that he was concerned that the smell could cause health problems or diminish the value of his apartment.

The court ruled that the landlord proved that the resident breached the lease by maintaining a nuisance, which interfered with other residents’ use and enjoyment of their homes. It was clear that the resident’s failure to keep her unit free from clutter and in a sanitary condition over the course of at least two years represented a continuity and recurrence of objectionable conduct.

Although the landlord was entitled to final judgment of possession and warrant of eviction, the court had broad discretion to determine whether a resident with a disability should be given an opportunity to cure the condition or be allowed additional time to relocate. In this case, the court said that the resident, an elderly woman who had lived in the current unit for 10 years, would be likely to suffer extreme hardship if a stay weren’t granted. Furthermore, the guardian was making good faith efforts to secure a safe, affordable dwelling for the resident and that it was reasonable to afford the guardian more time to do so. In the meantime, the resident had allowed the landlord to have access to her unit and had cooperated with the guardian’s efforts to keep the unit clean and free of clutter.

The court granted a stay of execution for 90 days to allow the guardian time to sell her unit and relocate her to a suitable environment, or in the alternative, to allow the guardian an opportunity to cure the nuisance condition, without prejudice to seek a further stay upon the showing of good cause [140 W. End Ave. Owners Corp. v. Dinah L., New York, November 2019].

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

Answer.The question is an important one. It calls into play a balancing of two statutes, ORS 90.730and ORS 90.740. Rather than set them out verbatim, below, I will discuss below only those portions of the statutes that deal with the issues you have raised.[1]

 

Tenant Obligations (ORS 90.740)

First, note that these are those tenant duties imposed by the statute. The rental agreement could – though unlikely – could alter them. I say “unlikely” because elsewhere in Chapter 90 the law imposes liability on landlords that try to “shift” to tenants certain statutory duties imposed on landlords.[2]

 

The main requirements dealing with utility systems are as follows:

   

• First, if the home is being installed by the tenant (or more likely their contractors) it must be in compliance with applicable laws and the rentalagreement.
• Second, they must install and maintain storm water drains on the roof of the home and connect them to the drainage system (ifany).
• Third, they must use all electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to thosesystems.

 

Additionally, there are some collateral conduct obligations that could indirectly interfere with the operation of various park-wide systems, and thereby incur liability. They include:

• As an ongoing obligation, tenants must dispose ashes, garbage, rubbish and other waste in a clean, safe and legal manner. 
• They must keep the rented space in every part free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin as the condition of the rented space permits and to the extent that the tenant is responsible for causing the problem. 
• The tenant shall cooperate to a reasonable extent in assisting the landlord in any reasonable effort to remedy theproblem.
• They must keep the home and the space, safe fromthe hazards of fire. This includes installing and maintaining a smoke alarm approved under applicable law.
• They must refrain from deliberately or negligently destroying, defacing, damaging, impairing or removing any part of thefacility, other than the tenant’s own dwelling or home, or knowingly permit any person to doso

 

Comment: If an obligation belongs to the tenant, say, installation of the home itself, it continues from homeowner to homeowner. It is never a landlord liability issue. But as discussed below, since the stability of the ground is a landlord duty, the stability of the home could be affected by the ground and become a landlord liability. 

 

Landlord Obligations (ORS 90.730)

The landlord’s primary duty to residents is “habitability”. The statute provides that at to park-wide systems, a rented space is considered unhabitable if it substantially lacks:

• A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord;
• If required by applicable law, a drainage system must be reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;
• A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord;
• An electrical supply and connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord;
• A natural gas or propane gas supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the gas supply system can be controlled by the landlord, if the utility service is provided within the facility pursuant to the rental agreement;

 

As to duties that can indirectly affect park-wide systems and cause landlord liability, ORS 90.730further provides that:

 

• At the time of commencement of the rental agreement, buildings, grounds and appurtenances must be kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;
• Excluding the normal settling of land, the park’s surface/ground must be capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy; and

 

As to common areas, if systems are supplied or required to be supplied by the landlord, they are considered unhabitable if they substantially lack:

 

• A water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord.

 

Comment: The first point to note is that these landlord duties (a) commence at the time of installation, and (b) continue as maintenance obligations throughout the term of the tenancy. Generally, tenant responsibilities to the community and its systems are governed by usage. If the usage is reasonable and the system fails, generally liability  will fall on the landlord pursuant to ORS 90.730.  The only major exceptions relate to tenant-required duties, i.e. (a) installation/stability of the home and (b) installation of storm water drains on the roof and their connection to the drainage system. Generally, these are where the “lines of responsibility” begin and end.

 

Conclusion.So with regard to the (allegedly) collapsing sewer pipe, unless there is some evidence of tenant responsibility, it is likely a landlord maintenance issue under ORS 90.730.

 

As to discoloration in the tap water, the solution is to immediately get the water tested and find out if others in the community are experiencing the same issue. Testing will likely disclose the source of the problem and whether it is dangerous. In both instances, unless there is some evidence of tenant-related causes, it is a landlord problem (to the extent the water supply system can be controlled by the landlord) the remedy will likely be on your dime. But installation of an “expensive filtration system” was likely premature, and the result of a good sales pitch. Ask the tenant for copies of all tests run before the system was installed.

Editor's Note:  By far - the largest number of phone calls to the MHCO office - year after year - is assistance animals.  Probably one of the most abused laws in landlord-tenant law.  Finally, HUD is offering some further - and much needed guidance.  The actual statement from HUD is attached above ("HUD Guidance on Assistance Animals 01-28-2020").  We have forward this to our legal team to review the appropriate forms and to provide an additional article - with greater clarity - on how to proceed on this thorny issue.  Stay tuned ....

***

HUD recently announced new guidance to clarify how housing providers can comply with the Fair Housing Act when assessing a person’s request to have an animal in housing to provide assistance because of a disability.

Federal fair housing law prohibits housing discrimination against individuals with disabilities. Among other things, the law requires housing providers to permit a change or exception to a rule, policy, practice, or service that may be necessary to provide people with disabilities an equal opportunity to use and enjoy their home. In most circumstances, a refusal to make such a change or exception, known as a reasonable accommodation, is unlawful.

A common reasonable accommodation is an exception to a no-pet policy. A person with a disability may require the assistance of an animal that does work, performs tasks, or provides therapeutic emotional support because of the disability. Housing providers may confirm, if it isn’t apparent, whether the requested accommodation is needed because of a disability that affects a major life activity and is a reasonable request.

HUD says its new assistance animal guidance will help housing providers in this process by offering a step-by-step set of best practices for complying with the law when assessing accommodation requests involving animals and the information that a person may need to provide about his or her disability-related need for the requested accommodation, including supporting information from a health care professional.

The new guidance also provides information on the types of animals that typically may be appropriate and best practices for when the requested animal is one that isn’t traditionally kept in the home. It also provides information for both housing providers and persons with disabilities regarding the reliability of documentation of a disability or disability-related need for an animal that’s obtained from third parties, including Internet-based services offering animal certifications or registrations for purchase.

“Countless Americans rely on assistance animals to fill a void, providing individuals with disabilities with the means to have a home that supports their quality of life,” Secretary Ben Carson said in a statement. “In my many discussions with housing providers and residents impacted by the need for assistance, I recognized the necessity for further clarity regarding support animals to provide peace of mind to individuals with disabilities while also taking in account the concerns of housing providers. Today’s announcement responds to the ambiguity surrounding proper documentation for assistance animals with clarity and compassion to provide an equal opportunity for a person living with a disability to use and enjoy their home.”

Because they apply to more types of facilities than housing, the laws applicable to public accommodations and government-funded facilities, including Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, while sometimes overlapping with the Fair Housing Act, have different, and sometimes narrower, requirements. Similarly, public transportation and common carriers, such as airlines, are also subject to different rules. The Assistance Animal Notice doesn’t address those circumstances.

Answer:  This situation is not directly addressed in the Oregon manufactured housing laws. First, some general observations: The manufactured housing side of the landlord-tenant law regards the “space” as the “premises.”  For example, a resident in an apartment may not, without landlord permission, intentionally make major structural changes to the interior of the premises. However, most apartments have rules against this, or it is included in the rental agreement. Your space agreement or rules may have similar prohibitions regarding major changes to the space.

 

In this case, however, you permitted the work to commence.  It is unclear whether you had reviewed any plans, before the work started.  You should have made this a condition of building the carport in the first place.  What about permits?  It is unclear whether they are required in your jurisdiction, but it is something you should always make sure is complied with.  

 

I am unclear what you mean when you say that other such structures are “free standing and permanent.”  If they are permanent, in the sense of being permanently affixed to the space, then presumably, you are treating these as structures that would remain if the home were sold and removed.  However, your independent conclusion that a structure is “permanent” and therefor stays with the space is really not the complete issue; what does the resident believe? It was his money that presumably paid for the work, and he may have some say in whether he intended it to be a part of the home, and movable if the time came.  

 

While your opinion is important, so is that of your resident.  For this reason, I suggest that before doing this again, you might consider addressing it in the community rules.  Some of the things that should be covered are the following:

 

· Code compliance

· Management pre-approval of completed drawings

· Time to complete work

· Your right to post a notice of non-responsibility for liens if the resident hires a contractor

· Method of affixing to the ground

· Safety of final structure and perhaps inspector sign-off

· Who owns the structure

· Can it be removed upon sale and removal of the home (I suggest “yes” so long as the space is returned to its original condition and all holes are safely and completed filled, etc.)

· Duty to keep the carport in good and safe condition – remember if it is a part of the space, absent agreement with the resident, it would be your duty, since you own the park.

In this particular case, I suggest that if you have not pre-addressed these issues with your resident, he may believe this is his structure to do with as he sees fit.  I really can’t disagree, since you permitted the project and from your question, it appears no ground rules were established regarding ownership in the event the home was moved. However, if you permit the carport structure to be removed, you should insist that the space be returned to its original pre-construction condition. That’s about the best you can do with this situation, although establishing rules – or at least agreed-upon terms – before construction commences again, is a good idea.

Answer. First, as we know, the 72-hour notice for nonpayment of rent does not require payment of the late fee in order to cure the notice. It is sufficient if the tenant only pays the rent within the specified time.  For nonpayment of rent only, you use MCHO Form N0. 42.

 

For nonpayment of late fees, you have two choices:

 

1. 1. Form 43A (Distinct Act or Omission). This arises under ORS 90.630, and gives the tenant 30-days to cure by payment. Nonpayment within the 30-days will entitle you to file for an eviction.

 

1. 2. Alternatively, you can ignore the nonpayment as a violation under ORS Chapter 90, treat it as an unpaid debt, and file in Small Claims Court (which generally does not allow attorneys to appear on behalf of the defendant). It’s you versus the tenant.  If the tenant is a serial late-payer of rent, and you’re constantly issuing 72-hour notices, you could accumulate the late fees until they get to a point, say $100 or $200, etc., and then file in Small Claims Court. You would get a judgment and could use it to garnish wages or bank accounts. But don’t let nonpayment of late fees go too long, as there is a one-year statute of limitations for breach of violations under ORS Chapter 90.

 

Also, remember that if the tenant is a serial late- payer, you can also issue a 3-strikes notice using Form 43D. See, ORS 90.630. This is non-curable, which means that the tenant cannot tender the rent and stay in the community.

 

Conclusion. It the tenant isn’t a serial non-payer, using the 30-day notice with MHCO Form No. 43A is probably you best bet for quick results.

According to the American Psychological Association, “Don't let your fear of meddling in someone else's business stop you from reporting your suspicions. You could be saving someone's life. . . ”

 

You can help. You do not need to evict. You can help your abused resident oust the abusive caregiver immediately.  You can report, help with “move-out” orders, “stay-away” orders, and other relief for your abused residents in your parks. 

 

■ California Mobilehome Residency Law’s 

Absence of Protection for Seniors Can be 

Supplemented with Management Help (E.g., 

Elder Abuse and Dependent Adult Civil Protection

Act (EADACPA), Domestic Violence Prevention Act (DVPA)

 

     The common wisdom is that evicting an abusive co-occupant, even a criminal, is fraught with difficulty and uncertainty. But the elder subject to an abusive caregiver, or other abusive household members, can seek an order to oust them by court order and without notice. The California Mobilehome Residency Law (Civil Code §§798, et seq.) (“MRL”) is no help here. The MRL is a prime enabler of elder abuse by its “hands off” policy to any occupants, and its unintended consequences welcome every predatory opportunist who cajoles his or her way into a senior’s coach. This while management is handcuffed from interceding with prevention, remedies, or even effective detection. But if we choose, we can do plenty to help the resident once we know.

 

     Evictions take forever.  Management must always wait for a 60 day notice to expire (once prepared and served) to even file suit to evict the abuser. That 60 day period enables the abuser to intimidate, terrify and coerce witnesses not to testify. Horrified, residents take shelter, lock themselves in and become prisoners in their homes. When WMA introduced legislation to evict such violent criminals, the State Senate Judiciary Committee killed the bill: not enoughreason to give management this remedy. So, the park owner’s hands remain tied for 60 days after notice of termination of possession based on outrageous abuse or even dangerous felonies (all on a “substantial annoyance” grounds) if anyone will testify as to the annoyance. But an at-risk elderly frail resident can go to court nowand obtain a “move-out” order without notice. We, as management, can educate and help.

 

     Move-Out Order Issue NOW- Without Notice.  In summary, management can assistthe abused or harassed senior and help get to court and get the abusive caregiver out NOW. Many residents cannot afford a lawyer, and often, it is the family that is responsible for the abuse. Management can do more than report. Maybe senior protective services will respond, maybe not. But court forms are designed for non-lawyers. We can help with these preprinted forms–and attend court with the resident, offer to be a witness, and also report to the police, County agencies and other family. As for courts, there are no filing fees or service costs.

 

     As the numbers of elder victims climbs, understanding management options will become a customary “best” management practice: a sign of good quality management, and a reflection of care and concern for frail and vulnerable residents. Actively enhancing lifestyle and atmosphere has always been a hallmark of the manufactured housing industry. 

 

     We can help end pain and misery to elder abuse victims of caregivers, family and deceitful predators. There are ways to bring immediate relief to desperate, life-threatening situations which usually are never detected, and which the Mobilehome Residency Law does not allow a park owner to initially prevent.

 

■ The Scope of the Mushrooming Epidemic:

For Every Reported Elder Abuse Case, 24 More are Unreported.

 

     The New York State Elder Abuse Prevalence Study found that for every case known to programs and agencies, 24 were unreported. Another reports that 1 in 10 older adults report emotional, physical, or sexual mistreatment, or neglect. Often, physical, emotional or psychological abuse accompanies financial abuse. Neglect and abandonment, for example, when the kids get a power of attorney and ability to withdraw money. 

 

     For about 40 years now, from 55+ to “all-age” parks, owners and management bring me problems that they observe or their residents bring to them. This is because of genuine concern, not out of sense of legal duty or obligation.  Because they care.       

 

 

■ Warning Signs and Indicators of Caregiver Elder Abuse.

 

     Watch for the following from your residents. There are signs that elder abuse may be occurring at the hands of the caregivers residing on the space. Bear in mind that the homeowner may not be capable of telling us of the abuse. The elder may also be ashamed, fearful of retaliation or punishment, or somehow assuming some of the blame for his or her own condition. 

     

     Who are The Exploitive and Abusers?  They May be Closer Than They Appear.

 

■        Family members, abusive children, nieces, nephews, past or present paramours, homeless 

■        Caretaker/caregiver/care custodian - any person who has the care, custody, or control of or who stands in  position of trust with, an elder or a dependent adult.

■        Banks, mortgage brokers, lenders

■        Insurance companies and their agents

■        Financial advisors and life agents

■        Trust mills

■        Real estate agents, title and escrow companies

■        Attorneys (and others holding themselves out as having legal expertise–tax preparers, paralegals, assistants, J.D. graduates)

■        Scams – lotteries, sweepstakes

■        Home repair, unsolicited work

■        Sweetheart scams

 

SUMMARY OF SIGNS OF ELDER ABUSE

 

Physical Abuse

■ Unexplained signs of injury such as bruises, welts, scars, broken bones or sprains

■ Report of drug overdose or apparent failure to take medication regularly

■  Signs of being restrained, such as rope marks on wrists

■  Caregiver's refusal to allow you to see the person alone

■ Physical or chemical restraints for caregiver's convenience 

■ Repeated unexplained injuries

 

Emotional Abuse

■ Threatening, belittling, or controlling caregiver behavior that you witness

■ Behavior from the elder that mimics dementia, such as rocking, sucking, or mumbling

■ Uncommunicative and unresponsive

■ Unreasonably fearful or suspicious 

■ Lack of interest in social contacts

■ Evasive or isolated 

■ Unexplained or uncharacteristic changes in behavior

■ Unexplained venereal disease or genital infections

■ Torn, stained, underclothing

 

Financial Exploitation

■ Significant or unauthorized withdrawals from the elder's accounts

■ Sudden changes in the elder's financial condition

■  Items or cash missing from the household

■ Suspicious changes in mobilehome title, legal owner, wills, power of attorney, titles, and policies

■ Addition of names to the elder's signature card

■ Unpaid bills or lack of medical care, although the elder has enough money to pay for them

■ Financial activity the elder couldn't have done, such as an ATM withdrawal by a bedridden account holder

■ Unnecessary services, goods, or subscriptions

■ New caregiver cars in the driveway; new high frequency of deliveries

■  Evidence of inadequate care when bills are paid in full

 

Elders May Contribute to Abuse, Secreting of Abuse, Fail to Recognize or Report

■  May lack cognitive ability to recognize abuse and/or their rights to safety and protection 

■ May be in denial; distorted view of treatment

■ May not have functioning neuro-pathways; not feeling normal pain, discomfort

■ May be incapacitated– unable to message out

■ Are often reluctant to report or prosecute

■ “Report me and I will put you in a home”

■ Afraid of removal from home

■ Fear of retribution

■ Dependence on others to assist with activities of daily living and personal care;

■  Communication or physical impairments which may limit ability to verbally or physically defend against a perpetrator and disclose abuse

 

■ FIVE (5) IMMEDIATE ACTIONS TO CONSIDER NOW:

 

★  CONTACT FIRST RESPONDERS: USUALLY, ADULT PROTECTIVE SERVICES.

       

                        ■             Adult Protective Services (“APS”) can provide investigations, needs assessments, remedial and preventative social work activities, food, transportation, emergency shelter.

■          Cross report to police for criminal restraining orders.

■          State mandates that each County establish a 24/7 emergency response adult protective services program to take and investigate reports of abuse of an elder or a dependent adult. Cal. W&I Code §15763)

■          “Protective services” include investigations, needs assessments, remedial and preventive social work activities; the necessary tangible resources such as food, transportation, emergency shelter, and in-home protective care; the use of multi-disciplinary teams; and a system in which reporting of abuse can occur on a 24- hour basis. (Cal. W&I Code §15760).

Keep Adult Protective Services Honest–Insist They Do Their Jobs: Mandatory Effort to Investigate

■          When an allegation of abuse of an elder or dependent adult is reported; and,

■              The agency social worker has reason to believe an elder or dependent adult has suffered or is at substantial risk of abuse pursuant to  Cal. W&I Code §15630; 

■          The social worker is required to attempt to obtain consent to:

–          enter and meet privately with the elder or dependent adult in the residence or dwelling in which the elder or dependent adult resides, 

–          without the presence of the person's caretaker, attendant, or family or household member, unless the person requests the presence of the attendant, care giver, or family member, or refuses to meet with the social worker. (Cal. W&I Code §15762)

■          APS action requires victim consent unless a Penal Code violation has been alleged. Cal.  W&I Code § 15636)

■          If the victim is incapacitated and cannot legally give or deny consent to protective services, APS may initiate a petition for temporary conservatorship.

★  HELP RESIDENT GET ORDER TO IMMEDIATELY OUST THE ABUSER. 

 

The courts make the applications, declarations and orders available as consumer friendly forms. No lawyers needed. Lawyers may be helpful in many circumstances. But do not let the absence of a lawyer stop a valid  application to the court from being made. 

Help the resident obtain a Move-Out Order (“Elder Abuse Restraining Order”) under the Elder Abuse and Dependent Adult Civil Protection Act. Originally, the Elder Abuse Act was designed to encourage the reporting of abuse and neglect of elders and dependent adults and continues to be a major component of the Elder Abuse Act as it stands in its current form today.

            The Elder Abuse Act now permits and even requires certain heightened remedies subject to statutory criteria and limitations, including attorney's fees, punitive damages, pain and suffering damages even after the abused elder's death, and fees for a conservator who successfully brings an elder abuse claim.

■          EADACPA allows a court to issue an order protecting an elder or dependent adult from further abuse by an individual including ordering a move-out from the property.  Cal. W&I Code §15657.03(c) provides that an order may be issued with or without notice, to restrain any person for the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction of the court, proof of a past act or acts of abuse of the petitioning elder or dependent adult. 

The evidence of past abuse is sufficient even without a particularized showing of evidence or risk that  wrongful acts will continue or be repeated.

■          Does Your Resident Qualify? In order to obtain an Elder Abuse Restraining Order, or EARO, the person requesting the order:

■          Must be an elder or dependent adult;

■          Must have suffered abuse.

■               An “Elder” is one who is 65 years of age or older.

■          For a Move Out Order, Must be a Legal or equitable Owner, and Defendant cannot be sole owner. 

■          Also included is the “Dependent Adult”, defined as a person between the ages of 18 and 64 who has physical or mental limitations that restrict the person's ability to carry out normal activities or to protect his or her rights.

■          If the Resident hires counsel, there is an entitlement to attorney’s fees. No reason park owner cannot supply counsel with reimbursement agreement. There is a right to recovery of attorney’s fees.

■          Does Your Resident Qualify for a Move Out Order?  The court may issue a restraining order excluding the abusive caregiver (including family members) from the resident’s home on a showing of the following:

■          Proof that the resident has a right of possession.

■          Proof that the abusive caregiver assaulted or threatens to assault the resident or other named family or household member including a conservator.

■          Proof that physical or emotional harm would otherwise result to the person to be protected.

■           After the restraining order is issued (without notice), the court may issue, after notice and hearing, an order excluding a person from a residence or dwelling if the court finds that physical or emotional harm would otherwise result to the petitioner, other named family or household member of the petitioner, or conservator of the petitioner.

■          An order excluding the abusive caregiver from the dwelling is permitted, except not if legal or equitable title to, or lease of, the residence is in the sole name of the abuser, or is in the name of the party to be excluded and any other party besides the petitioner. Cal. W&I Code §15657.03 (b) (3) (B).

The courts provide pre-printed forms. This makes it easier to go to court and get the orders. The courts are familiar with the forms and often provide relief with the right language. Of course, management can assist in the preparation of the papers, if the resident is unable to do so in a winning fashion. 

The law states that (Cal. W&I Code §15657.03(d)) on filing a petition for protective order, “the petitioner may obtain a temporary restraining order.” The law says that an injunction is available without notice if:

■          It appears that great or irreparable injury will result before the matter can be heard on notice. 

■          The resident or his or her attorney certifies one of the following: 

–          That within a reasonable time prior to the application the applicant informed the opposing party or the opposing party's attorney at what time and where the application would be made. 

–          That the applicant in good faith attempted but was unable to inform the opposing party and the opposing party's attorney, specifying the efforts made to contact them. 

–          That for reasons specified the applicant should not be required to so inform the opposing party or the opposing party's attorney.

Note, that the court may grant a an elder abuse restraining order on a preponderance of the evidence.

★         HELPKICK-OUT THE ABUSER!!

(DOMESTIC VIOLENCE PREVENTION ACT– DVPA). 

         

Your resident may seek a DVPA “move-out” order to immediately oust the abusive, dangerous or harassing caregiver. The “kick out” order forces an ouster of an abusive caregiver.  An order can be issued to restrain contact either directly or indirectly:

■         By mail or otherwise, 

■         Coming within a specified distance of, or

■         Disturbing the peace of the other party.  Cal.Family Code §6320, 6211.

            The law provides that a court may issue an order, without notice, to exclude a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence. “Domestic violence” is abuse perpetrated against spouses, co-habitants, children and blood relatives within the second degree.  But the order may issues regardless of the owner of the property. 

            Types of “domestic violence protective orders” includes an order enjoining specific acts of abuse (Cal.Family Code §6320), excluding a person from a dwelling (Cal.Family Code §6321) and enjoining other specified behavior. (Cal.Family Code §6322).

■         For an order excluding a party from a dwelling, the following proof is required:

--         The resident has a right to possess the mobilehome; 

--         The resident’s spouse or significant other has assaulted or threatened to assault the abused resident,  child, or any person that is under the resident’s care, custody, and control;

--         If the exclusion order were not granted, physical OR emotional harm would otherwise result. 

While title ownership is not required, still, the relationship to the victim is a requirement must be established.  The resident must reasonably show that if the order were not granted, that physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party. (Cal.Family Code §6321)

■   What is  “Abuse”within the meaning of the DVPA? (Cal.Family Code §§6203 (a), (b), (c), (d).)

--         Intentionally or recklessly causing or attempting to cause bodily injury; or

--          Sexual assault; or

--         “Reasonable apprehension” of imminent serious bodily injury to person or

 another; or

--         Engaging in any behavior that has been or could be enjoined

 (Cal. Family Code  §6320).

Thus, the requisite “abuse” need not be actual infliction of physical injury or assault.

★         HELPGET A HARASSMENT INJUNCTION!! 

CAL. CODE OF CIVIL PROCEDURE §527.6

 

Civil injunctive scheme has a separate procedure to prevent civil harassment to prevent unlawful violence, threats of violence and suffering of emotional distress. (Cal. Code of Civil Procedure §527.6).

■   Court forms are available: ttp://www.courts.ca.gov/documents/ch100.pdf

■   Civil injunction requires demonstrating imminent irreparable harm, probability of success on the merits and a balancing of equities. An elder who has suffered financial abuse may seek a protective order, including a TRO:

            --         Enjoining someone from abusing, intimidating, molesting, attacking, stalking, threatening, sexually assaulting, battering, or harassing the petitioning elder,

            --         Preventing the destruction of the elder’s personal property, and

            --         Excluding someone from the elder’s home.

            ■   Family members residing in the home with the elder and caregivers can be added as protected parties to receive the full protection of the temporary restraining order.

★         HELPARREST A “SHORT TERM” ABUSER, GET JUDGMENT FOR POSSESSION FOR LONGER TERM ABUSER (CAL. CIVIL CODE §1946.5)

 

■              If there is a single lodger in the home:  Your resident can seek to oust the abusive occupant, boarder, lodger or caregiver.  Cal. Civil Code §1946.5 applies, only, if requirements are satisfied.

            --         The mobilehome must also be occupied by the resident; 

            --         The resident retains a right of access to all areas of the mobilehome and have overall control; 

            --         The abusive person is the sole, other, occupant, and 

            --         The abusive person must have contracted either for room, or room and board.

 

            ■         If all of the above conditions apply, the law prescribes an expedited procedure to bring about the removal of the lodger.The resident may terminate tenancy by serving written Notice of termination. The length of time must be equal to the tenancy period (e.g., 30 days for a month-to-month).  Note the occupant has no tenancy rights and is not subject to the MRL. 

 

            ■         At the expiration of the required Notice period, the resident must file an action for unlawful detainer. For short term occupants, the occupant can also be arrested if required conditions are met. A private person's arrest is authorized, on condition, for violation of Penal Code §602.3 (an infraction). 

 

            ■         In summary, if the situation involves a single occupant, the resident can make a private person arrest for Cal. Penal Code §602.3 in lieu of proceeding through the eviction process.  Penal Code§602.3 states:

 

  (a) A lodger who is subject to Section 1946.5 of the Civil Code and who remains on the premises of an owner-occupied dwelling unit after receipt of a Notice terminating the hiring, and expiration of the Notice period, provided in Section 1946.5 of the Civil Code is guilty of an infraction and may, pursuant to Section 837, be arrested for the offense by the owner, or in the event the owner is represented by a court-appointed conservator, executor, or administrator, by the owner's representative. Notwithstanding Section 853.5, the requirement of that section for release upon written promise to appear Shall not preclude an assisting peace officer from removing the Person from the owner-occupied dwelling unit.

(b) The removal of a lodger from a dwelling unit by the owner pursuant to subdivision (a) is not a forcible entry under the provisions of Section 1159 of the Code of Civil Procedure and Shall not be a basis for civil liability under that section.

            * * * 

            (f) This section applies only to owner-occupied dwellings where a single lodger resides. Nothing in this section shall be construed to determine or affect in any way the rights of persons residing as lodgers in an owner-occupied dwelling where more than one lodger resides.

 

■              No “Good Samaritan” standing:  Management is not entitled to be a party to assist the resident. But we may be of assistance and help save a life. 

 

There is no “Good Samaritan” standing to help an abused senior escape elder abuse. A park owner cannot assert claims directly for residents. Management can report claims and keep up the pressure to insist on positive and prompt action. As revealed by various cases of recent elder abuse, not even the agencies touting their dedication to ending elder abuse take any action in very clear cases. 

 

There are limits as to who may have standing to bring an elder abuse action on behalf of an alleged victim during the elder’s lifetime.

 

            The EADACPA supports third-party standing for certain representativesto bring an elder abuse claim on behalf of an abused elder while he or she is still alive. Such as conservators. But not many others, including concerned family members. There is also no “Good Samaritan” standing, which would allow concerned persons to intercede and seek relief.

 

★         YOUR RESIDENT HAS THE RIGHT TO DEMAND RETURN OF PROPERTY

WRONGFULLY TAKEN–ITSELF AN ACT OF ELDER ABUSE¹

 

■         The elder or a “representative of the elder” may demand the return of real or personal property from a person or entity who took, secreted, appropriated, obtained, or retained, or assisted in those acts when the elder or dependent adult lacked capacity or was of unsound mind.

■        The failure to return the property on demand gives rise to a separate claim for financial elder abuse, even if the original taking was not financial elder abuse within the meaning of EADACPA.

 

★        DEFINITIONS, LAWS, REGULATIONS, FURTHER INFORMATION 

              ■  What is Elder Abuse??  

 

Cal. W&I Code§15600 et seq.defines elder abuse as physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment resulting in physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. This definition applies to elders and dependent adults. Cal.W&I Code§15610.63:  

 

As defined by Penal Code, “physical abuse” includes: 

 

■  Assault, battery, sexual assault, battery or rape, 

 

■  Prolonged or continual deprivation of food or water,

 

■  Use of physical or chemical restraints for punishment,

    convenience, or without or beyond the scope of the doctor's order.

 

■  What Is “Neglect” And “Self-Neglect”?

        

“Neglect”means either of the following:

 

■ The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.

 

■  The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.

 

■  Neglect includes, but is not limited to, all of the following:

 

■  Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

 

■  Failure to provide medical care for physical and mental health needs.

                                                                        

■  Failure to protect from health and safety hazards.

 

■  Failure to prevent malnutrition or dehydration.

■ Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4) for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

 

         ■  What is “Isolation” ? 

 

“Isolation”means any of the following:

 

■ Acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls.

 

■  Telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons.

 

■ False imprisonment, as defined in Section 236 of the Penal Code.

 

■ Physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors.

 

         ■  What is “Financial Elder Abuse”?

            

“Financial abuse”of an elder or dependent adult occurs when a person or entity does any of the following:

 

■  Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

 

■ Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

 

■ Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence.

 

■ A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.

 

■ A person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.

 

■  Watch for “Powers of Attorney”  as Another Form of Elder Abuse

 

Powers of attorney are a frequent tool of abuse. These are low cost, easy to execute, can grant very broad powers and available on the internet without the need for legal counsel. The “POA” often grants the agent the same broad general powers of a Trustee but, unlike revocable trusts, generally lack provisions defining duties owed by the agent to the principal.  Because general POAs are not tied to particular assets, there may be multiple conflicting instruments empowering multiple agents.

 

■  Care-Giver Cannot Take from Estate of Deceased Resident 

 

California  law prohibits bequests to caregivers–they are barred from receiving anything from a homeowner.   A caregiver cannot move in with the hope of convincing residents to give them property after death. Cal. Probate Code §§21360 -21392. A caregiver, or "care custodian,"  means any ". . . person providing health services or social services. . . " Cal. W&I Code §15610.17(y). Fraud or undue influence is presumed if a bequest is made. Cal. Probate Code §21380(a)(3). The bequest is invalid.

Caregivers Can Steal Our Residents Blind (and do). Do they try to be signed on title for a "quick flip" of the mobilehome? Nothing stops that. And management must approve the buyer and not interfere with a sale. 

■ Conclusion: Make A Difference 

The expansive rights of “care-givers” and “companions” is a product of a pro-mobilehome-resident legislature that actively prevents park owners from ejecting even serious criminals. Moreover, the potential for resident abuse is drowned out by claims that owners will abuse such a remedy. So, the needy continue to suffer for sake of appeasement of tenants, who oppose anythinga park owner proposes. Usually, we do not evict without resident support. 

Plainly, the probability of resident abuse increases as the numbers of retirees grows in leaps and bounds. These people live in your parks. The additional occupant has an open invitation for interloping, domineering, and controlling the frail resident.  All these visitors–usually abusive family--are empowered to quash the free will of your frail resident, take the check book and lock them away. And the MRL provides no management rights to approve, affect or detect elder abuse. Management has no ability to intervene even if requested by a resident.

Watch for signs of elder abuse. Report it. You could be saving someone's life. Remember: The resident has five (5) options which can be pursued as soon as discovered.

Management’s powers of observation are therefore needed to report and persistently complain if needed. When objective evidence tells your instincts that something is “just not right,” report it and ask questions. Legally, is there a duty to do so? Absolutely not. But that is not us. We are in business to serve.

Multnomah County landlords temporarily won’t be able to evict tenants who can’t pay rent due to coronavirus.

 

County Chair Deborah Kafoury and Portland Mayor Ted Wheeler announced Tuesday that they have signed emergency orders that ban eviction of tenants who fall behind on rent due to coronavirus-related challenges.

 

They also announced the county will open hundreds of new shelter bedsin public buildings and other spaces for people experiencing homelessness and Portland’s economic development agency will provide $150,000 in grant to aid businesses in Portland’s Jade District along 82nd Avenue. They said city and county government meetings will be held virtually for the time being.

Under the temporary eviction moratoriums, tenants will have up to six months after March 26, when city and county state of emergencies end, to repay any rent they owe, officials said. The moratoriums apply to people whose jobs are shut down, whose work hours are reduced, who miss work to provide child care due to school closures or who are unable to work because they or a relative are sick from the virus.

 

Tenants will have to provide letters of proof from their employer, school, doctor or other source to verify their hardship. Landlords who don’t comply with the order could be sued and liable for civil damages as well as other sanctions.

“Yes, everyone should pay their rent on time," Kafoury said. "But for people who are losing their wages due to COVID-19 and find themselves unable to pay rent, we want you to be able to stay in your home.”

Kafoury said discussions are underway with the state courts and county sheriff’s office “to make changes that will keep people housed during this emergency.” She did not elaborate on what those changes would be.

 

On Monday, Multnomah County Circuit Court suspended all eviction hearings and trials that were scheduled through March 27 and indicated they will be rescheduled for after March 30.

Kafoury said the county will continue to offer motel vouchers for some people who are in shelters and hotels and motels will be banned from refusing occupancy to any of them. She also said some of the newly opened beds will provide space for people who show symptoms of coronavirus and allow them to recuperate.

 

Wheeler said the grant money for small businesses is being made available first to Portland’s Jade District because the shopping and dining district, centered on Southeast 82nd Avenue and Division Street, is home to many Asian business owners, some of whom seen their revenue drop by as much as 60% amid the coronavirus crisis. There are plans to expand the aid to other businesses throughout the city in the future, Wheeler.

 

Affected business owners should call 311 for more information, he said.

Wheeler said a city task force was created Monday dedicated to coming up with ideas to help ailing small and large Portland employers and employees. A commercial eviction prevention strategy and other financial relief are also in the works and city officials plan to meet with bank authorities to see if aid can be provided for Portland landlords, Wheeler said. He called on Oregon legislators to increase rental assistance programs statewide.

 

The mayor said he was proud to hear stories from all over the city of people providing meals and other help to one another during the outbreak.

“We’re in this together. You’re not alone,” Wheeler said. “We will get through this and we’ll get through it together.”

 

On Monday, Home Forward, the Multnomah County housing authority, announced the same moratorium on evictions for its own buildings.

The moratorium doesn’t go far enough, said Margot Black, co-chair of Portland Tenants United and candidate for City Council. She wants total rent forgiveness -- meaning that renters wouldn’t have to pay back the rent they miss during the state of emergency.

“When this recession or depression hits, we’re not going to be able to pay rent for a long time,” Black said. “It’s not like when things get back to normal, whatever that normal looks like, we can carry a six month rent debt with us and figure out a payment plan.”

 

Protesters interrupted Tuesday press conference to demand that same, including one person who threatened to cough on Wheeler.

 

Wheeler acknowledged that forgoing rent payments for six months could hurt some landlords. He said the city of Portland will be calling on banks and credit unions to extend loan repayment timelines in some circumstances.

This article is general in nature and is not intended as legal advice for any specific issue that might arise, since every situation is different. Always consult a knowledgeable landlord attorney with your specific legal issues.

The Chief Justice of the Oregon Supreme Court issued a statewide Order yesterday significantly restricting court operations in all counties beginning no later than March 19, 2020. All eviction case 1st appearance hearings and all eviction trials will be automatically postponed and rescheduled by the court through at least March 27, 2020, although subject to extension even beyond that date depending on conditions at the time. For postponed trials, landlords may file a motion with the court requesting that the tenant pay rent into court pending trial, although the court will have discretion on whether to grant any such motion.

The Chief Justice’s Order does not prohibit landlords from issuing eviction notices or filing eviction cases during this period (BUT SEE Multnomah County restrictions below). However, any new eviction cases filed during this time will not be set for a 1st appearance hearing until after March 27, 2020, and likely much longer after that date.

The Order allows each county court to decide for itself which in-person services it must continue to provide to the public. This means that each court has some discretion on whether to allow in-person filings, or to continue issuing Notices of Restitution and Writs of Execution to complete the eviction process on existing eviction cases. Landlords should check with their local circuit court to see if these eviction services will be offered during the shutdown (and check with the county sheriff’s office as well).

Multnomah County today issued a temporary moratorium on all residential evictions based on the nonpayment of rent due to wage loss resulting from COVID-19. To be eligible, an affected tenant must be able to demonstrate with documentation or other objectively verifiable means a “substantial loss of income” resulting from the pandemic and/or government restrictions. The tenant must notify the landlord with this information on or before the day that rent is due to be eligible for rent deferment. The tenant is not relieved from paying rent, but must pay accrued rent to the landlord within six months after expiration of this emergency (and landlords cannot assess late fees).

The Multnomah County moratorium does NOT prohibit landlords from issuing or filing eviction cases on for-cause eviction notices or other lawful (non-rent related) notices during this period. However, all court hearings on eviction proceedings will be suspended until April 30th or later, and the moratorium prohibits the Multnomah County Sheriff’s Office from executing on a currently-pending eviction judgments for nonpayment of rent if it would cause a person to be without housing. The Multnomah County Attorney will be drafting an ordinance that will impose retroactive fines and penalties for violation of the moratorium measures. SINCE THIS IS A FLUID SITUATION, LANDLORDS SHOULD CHECK WITH YOUR LOCAL CIRCUIT COURT AND/OR ATTORNEY BEFORE PROCEEDING ON ANY EVICTION ACTION.

 

Over the weekend and into this week MHCO has been working with MHCO's legal counsel Phil Querin to develop guidance and appropropriate forms as we move through the COVID-19  crisis.  We have received many phone calls from concerned community owners and managers with many questions on how to proceed.  During this unprecidented crisis please keep three words in mind as you manage your communities: Compassionate, Fair, Consistent.  We are all in this together.  

MHCO has posted a memo by Phil Querin on how to handle notices while Oregon Courts are closed (See attached ABOVE). We have also drafted a new form for owners and managers to use in situations where a resident is facing hardship and cannot pay rent.  This form (PDF Format) (See Attached ABOVE) and article have been uploaded under "Community Updates" and will not be uploaded to the 'Forms' section of the web site.