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2023 MHCO Annual Conference and Management Training Seminar

Graduate Hotel - Eugene (66 E 6th Ave, Eugene, OR 97401) | October 23-24, 2023

We are excited to put together an Annual Conference that will be beneficial for you. Please see the program for an outline of our speakers and topics. Please feel free to call the MHCO office at 503-391-4496 or to email Erica at mhcoregon@gmail.com or Chuck at mhcochuck@gmail.com if you have any questions or concerns.

All cancellations or replacements must be received in writing at least 1 week prior to the seminar deadline date. There will be a cancellation fee of $75. There will be no refunds for cancellations received after October 13th.

Reviewing the applicant’s rental application Since 1995 when Orca Information, Inc. first opened its doors for business Nationwide, we found the following: The Landlord who reviews a rental application, making sure it is filled out correctly, all phone numbers are provided, signatures, etc., will receive a quicker turn-around time on the background screening report. This applies to this day. Not only does the applicant's screening report come back faster, the information on that report is also more accurate and thorough. Now, how is that possible? How can an application thoroughly filled out, result in a more thorough background check? The more accurate and thorough the information on the rental application, the more the tenant screening company has to work with - more clues leading to the discovery of the applicant’s identity, past history as a tenant and their behavior in our society. Hands-Off approach I have had a number of property management friends tell me, when their boss started using the new “savvy” property management screening software for their “HANDS-OFF approach”, their evictions increased. Why? Because they ended up renting to less qualified applicants. No one was carefully monitoring the applicant’s rental application and screening process as they had in previous years. Increased evictions However, because the property management company’s "decision makers" chose the "hands off" approach, they were often unaware of the increase in evictions. After all, it really is a "hands-off" the rental application process - that’s the kind of software being sold these days. Allow me to add, the new "savvy" software truly has helped streamline the business of Property Management. The mistake being made is they are in the business of property management software development, NOT Tenant Screening. They are two completely different worlds. My recommendation My recommendation based on many years of observation is: If you want to receive your screening reports back faster, review the application for readability, accuracy, and thoroughness before you submit it for screening. If you want more accurate information on your background screening reports, do NOT use a Property Management software screening service. Choose a company that specializes in Tenant Screening.
 The above is not legal advice. Rebekah Near is not an attorney. Questions may be directed to Rebekah Near at the following email address: Rebekahn@orcainfo-com.com. Your email address will be kept confidential. I do not sell your email address, nor do I use your email address for anything other than to respond to your question. For training videos on this subject and others related to the rental industry, visit our website: https://www.orcainfo-com.com/orcatube.cfm

Spot the Discrimination Mistake

Same scenario as last week’s article, but now assume that the landlord allows the tenant to keep her assistance animal stray cat, provided that she pays the pet deposit that all tenants who want to keep a pet in their apartment must pay.

Pitfall: If allowing a tenant’s assistance animal is required as a reasonable accommodation, you can’t ask the tenant to provide a pet deposit, extra insurance, or indemnity for keeping the animal.

Example: A Minnesota apartment community paid $35,000 to settle claims of placing undue conditions on a tenant’s request for a service animal by requiring her to:

• Buy an insurance policy covering the dog and listing the landlord as a co-insured;
• Make the dog wear a special emotional support animal vest at all times outside the apartment; and
• Sign an “indemnification and hold harmless waiver” covering the landlord against any harm the dog caused [United States v. Brooklyn Park 73rd Leased Housing Assoc., LLC (D. Minn., Jan. 22, 2016)].

Pitfall: The ban on charging a fee for granting a requested reasonable accommodation also applies to charging fees or deposits for processing an accommodations request. Requesting processing or administrative fees is a common mistake, especially in the context of parking accommodations that entail monetary costs or additional liability risks to the landlord.

Example: A Pennsylvania senior housing provider had to shell out $80,000 to settle discrimination claims brought by mobility-impaired tenants and fair housing agencies, including for allegedly charging tenants with disabilities as much as $350 for designated parking spaces necessary to make their apartments accessible [Clover Group, May 2020].

Solution: Recognize that if an accommodation is reasonable, you must pay the associated costs out of your own pocket and not charge the requestor a fee or deposit to defray the associated expenses. In addition, you can’t deem a requested accommodation unreasonable simply because it costs time and money to provide.

To reject an accommodation as being unreasonable, the burden must be “undue,” based on the financial resources, the benefits to the requestor, and the availability of cheaper, easier alternatives that would effectively meet the requestor’s needs. Thus, for example, you don’t have to create extra parking spaces or enlarge your parking lot just to accommodate a single tenant.  

Answer:  This is a very broad question, which is why the answer will have to be general. What follows are some of the major issues that occur. In all cases, the best protection for Management is to make sure these issues are addressed either in the Rental Agreement or the Rules – and then make sure they are enforced in a timely manner.

 

What Does the Rental  Agreement Say?  The MHCO Rental Agreement provides that a tenant may not “erect additional structures (attached or detached), including but not limited to fencing, steps, or decks, to the exterior of the Home or anywhere upon the Space (hereinafter “Construction”) without LANDLORD’S prior written approval.”

This imposes a duty on management to be vigilant. If an unpermitted fence goes up and is allowed to remain without oversight, it could result in waiver issues for the landlord.

Management must be proactive and require that any recently unpermitted fences be vetted in accordance with Section 7 of the MHCO Rental Agreement (Improvement to Rental Space or Home).  They should either be made to conform to all applicable laws and codes or removed.

 

Preexisting Fences/Structures. Again, vigilance is the watchword. Before permitting an owner to sell their home, landlord should make sure that there are no structures out of conformance with all codes and laws. This can be reasonably easy to do, especially if it is covered in the Park Rules dealing with obtaining landlords consent to sell. Using ORS 90.632 (Termination/Deterioration of Home) unfortunately, does not directly apply because it pertains only to homes.

 

However, landlords can craft a rule change that would accomplish the same result for all fences or other structures on the space which were either installed by the tenant or existed at the time of purchase of the home. Like ORS 90.632, the notice could be made transferable and imposed upon the new tenant/buyer if he/she agrees. This would then be  something the existing homeowner could negotiate with the new buyer as a part of the sale. In this manner noncompliant fences, etc. can be corrected.

 

What About Pre-existing Fences at Time of Park Purchase?  In my opinion, this is a due diligence item for Park purchasers to attend to. Unfortunately, I have seen many instances of where it is not done; thus the problem gets ignored until something occurs, such as an argument between tenants as to who has the duty to maintain.  Is the fence even located where it should be? Upon park purchase, landlords should consider vetting the issue between the tenants who border the fence.  Who maintains? What do the Rules say?

 

Going forward, this is a significant issue for landlords to consider when amending their rules. In a perfect world, the new rule should address maintenance responsibility. The easiest solution is a shared liability between bordering tenants – assuming that the fence was there when all tenants purchased their homes. If one tenant unilaterally installed a fence (benefiting both adjoining tenants) the issue becomes whether the tenant who did not construct or ask for the fence should have to pay. (Note to Landlord: This is what happens when the new fence construction is ignored and allowed to remain without resolving the issue at or before construction.)

This might be something that mandatory mediation under ORS 90.767 could address.

 

Park Installed Fences. Clearly, these are the landlord’s duty to maintain, even if they were installed before Park purchase. One issue, however, is that Park purchasers should make sure the preexisting fences are on or near the correct boundary lines. Tip: The older the fence, the greater the likelihood it needs to be surveyed as a condition of purchase.

 

Tree Damage to Fences. Tenants are, by statute, required to maintain and water trees, includingcleanup and removal of fallen branches and leaves, on the rented space - except for hazard trees. “Maintaining a  tree” means removing or  trimming a  tree  for  the  purpose  of eliminatingfeatures of the  tree  that  cause the  tree  to  be hazardous, or  that  may  cause  the  tree tobecome hazardous in  the  near  future. “Removing a tree”  includes felling it, removing it, and  grinding or removing the stump of the tree.

 

But for damage to fences, ultimately the issue goes back to whose fence it is and who has maintenance and repair duties. This may not be addressed in the rental agreement or rules. But it could be by a rule change.

 

The Take-Away. As a rule of thumb, the landlord is in the best position to deal with these issues proactively. This can be done by a good rental agreement such as the MHCO form, plus implementing rules to address fences. Oregon law permits amending the rules even if they alter the bargain at the inception of the tenant’s tenancy. (Check with your lawyer first!)

 

But the bottom line is that in the event a fence has been allowed to remain between tenants’ spaces with no landlord involvement, the damaged fence should be repaired. If the tenants cannot or will not agree, it will likely become management’s responsibility, because it could have been addressed originally, but was  not.

Spot the Discrimination Mistake

Without the financial resources to provide lifeguards, a landlord adopts a safety rule banning children from using the community swimming pool.   

Pitfall: While banning children from the community pool might prevent drownings, it would also run afoul of FHA regulations that make it illegal to “deny or limit services or facilities in connection with the sale or rental of a dwelling” on the basis of family status [24 C.F.R. §100.65(a)]. Prohibited actions include “[l]imiting the use of privileges, services or facilities associated with a dwelling because of . . . familial status” [24 C.F.R. §100.65(b)(4)].

Although HUD guidelines state that it’s okay to impose “reasonable health and safety rules designed to protect minor children in their use of facilities associated with the dwellings,” they also impose specific restrictions. Among other things, the rule must serve a compelling safety interest that can’t be achieved via less discriminatory alternatives.

Example: A California landlord adopted a rule stating that “under no circumstances may children play” in the pool area walkways. The federal court held that the rule was “facially discriminatory” because it treated children less favorably than other persons. While child safety was a compelling goal, the rule wasn’t the least restrictive means of ensuring it, the court reasoned. If the landlord was concerned about safety in the pool walkways, it should have banned all residents from playing on them, not just children [Rojas v. Bird, 2014 WL 260597, at *2 (C.D. Cal. Jan. 10, 2014)].  

Solution: Even if you could show that its sole intention is to ensure kids’ safety, banning children from the pool would be all but unjustifiable given all the less restrictive ways you could accomplish that objective. If it’s unruly behavior you’re worried about, the answer isn’t to exclude children but any and all troublemakers. If children are the problem, your first recourse should be to speak to their parents or guardians.

Spot the Discrimination Mistake

The precise rule: “Children ages 18 and younger may not use the swimming pool unless they are supervised by a parent.”

Pitfall: As HUD acknowledges in a 1992 Memo, “requiring a responsible adult to supervise young children and provide written designation of an adult supervisor are policies which appear more tailored to protect legitimate health and safety interests and appear less problematic” than a total or partial ban on children’s use. However, the legality of adult supervision rules depends on how they’re framed. Basic Rule: You can require adult supervision as long as the rule is narrow and no more restrictive than it has to be to accomplish the purpose.

While it’s true that many young kids can’t swim, lots of adults also lack proficiency in swimming. The danger of swimming unsupervised, in other words, is based not on a person’s age but the fact that they can’t swim. Once you introduce age and family relationship into the equation, you take the supervision rule to places it shouldn’t go. 

Example: The parents of three young children sued their California landlord for adopting a rule stating that “Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian.” Too restrictive, said the federal court. A “prohibition on unsupervised swimming which would prevent even a 17-year-old certified lifeguard from swimming unaccompanied is overly restrictive.” While recognizing “the inherent dangers of unsupervised swimming,” the court concluded that requiring that a parent or legal guardian to supervise “transforms this rule” from a legitimate safety precaution to an unjustified restriction on children and their families” [Iniestra v. Cliff Warren Investments, Inc., C.D. Cal. 2012, 886 F.Supp.2d 1161].

Solution: The least restrictive and most nondiscriminatory way to accomplish the safety objective of the adult supervision rule is to frame the rule in terms of swimming proficiency and the ability to supervise responsibly. Options:

• Require supervision of not just children of certain ages but any person who can’t swim;
• Require all would-be pool users—and not just children—to pass a swimming proficiency test administered by a competent lifeguard or swim instructor; and
• Rather than a “parent” or “adult guardian,” require non-proficient swimmers to be supervised by a proficient swimmer.

Revised Pool Rule: In the interest of safety and in accordance with local laws, individuals who are not proficient swimmers may not use the community pool unless they are supervised by a person who is a proficient swimmer.

Answer:  I will address this in a series of suggestions which will hopefully provide some answers and/or approaches. First, remember that park property is private property. The landlord owns the spaces and common areas, and the residents own their home.  This gives Management the right to control who enters the community.

 

Second, this basic fact does not often get conveyed to the residents or their guests. Third, this communication gap can be addressed in written park policies and rules – which rarely happens. The result is that management frequently does not know how to deal with people inside the park but with questionable authority to be there. Accordingly, here are some suggestions:

 

1. Notify residents of management’s right to keep people off park property if they cannot account for why they are there.
2. This can be accomplished through communications with the residents, but best accomplished through adoption of a new rule providing that management reserves the right to require persons in the park (especially on foot) with no apparent reason, to identify themselves and their purpose. (The reasons could be work related, family/guest related, or possibly just strolling etc.). But absent those or similar reasons, management may be rightfully suspicious.
3. The Community should be properly posted that it is private property and unauthorized persons are not permitted without first contacting the management office. This would be management’s opportunity to vet the credentials of the people.
4. This posting could require that all people other than tenants must first register at the park office (at least the first time). It should say that unauthorized persons will be asked to leave.
5. Your question does not clarify why you contact the police. Was it because you saw someone suspicious, but never contacted them?  If you did make contact, did they refuse to tell you what they were doing there? Did they tell you but you either could not verify it or didn’t believe them? Going forward, I suggest that before you contact the police, you first do everything you can to determine for yourself what the person is doing there. If you don’t know and can’t tell the police, I understand their taking the path of least resistance by saying that unless they know the person has no business being there, its reasonable to assume they are a guest or a visitor of some tenant. But you can and should vet these issues first before asking the police to come remove the person.
6. Contact the local jurisdiction (county or city – whoever polices the area) and find out from them under what circumstances they will, at your request, trespass someone. Each jurisdiction can be different, so you want to know exactly what your police require.
7. My experience is that generally, the trespass issue doesn’t occur as much with vagrants who have no business there in the first place, but with guests and family members who are not tenants on the rental agreement - but using it as a crash-pad with the tenant’s permission. It is these people that can be biggest problem precisely because they are invitees of authorized tenants.
8. Your rules should address the amount of time these guests may remain before they either have to leave or apply for residency. (It’s often because they cannot be approved as a tenant that they just stay at a space without Management’s knowledge or consent. It is these folks who can cause the greatest problems, especially for the neighbors. Clearly, the first approach is to speak to the authorized tenant and try to secure their cooperation without issuing a for-cause rule violation.
9. My experience with obtaining police cooperation is generally to formally initiate the trespass issue first. This would include personally delivering the person a letter requiring them to leave the park and giving them a certain date and time after which they will be deemed to be a “trespasser. This leaves no question that if they are still on park property after the deadline, they are a “trespasser.” I would deliver the letter to the problem person and the tenant of the space.
10. Once you have the letter delivered (using a witness perhaps to verify service) I believe the police will remove the person. But you want to verify this protocol with them first.

On July 6, 2023 the Oregon Legislature passed SB 611 which lowered the existing cap on annual rent increases for residential tenancies.  With the Governor's signature the bill is now the law.

 

Every year in late September, the state of Oregon calculates a maximum rent increase for residential tenancies based on the preceding year’s September Consumer Price Index for the West Region (CPI). The formula is a base of 7% plus the CPI. Typically, this results in a maximum rent increase of around 9%. Last year, due to pandemic-related inflation the CPI shot up to 7.6%, resulting in a maximum allowable residential rent increase for 2023 of 14.6%.

 

A new 10% cap has gone into effect as of July 6, 2023. Any rent increases going into effect from this date until December 31, 2023 may not be more than 10% [see note about rent increases in the City of Portland, below]. The new rental cap for 2024 will be calculated and published by the State of Oregon in the fall.

 

New Cap: SB 611 retains ORS 90.600’s the statutory formula of 7% plus the CPI, however residential rent increases will now be capped at 10%, regardless of whether the CPI exceeds 3%. All tenancies subject to ORS 90.600, except week-to-week tenancies, are subject to the following rules:

1. A landlord may only increase rent with written notice to the tenant at least 90-days prior to the rent increase; and
2. A landlord may not increase the rent more than once in any 12-month period.

 

Exemptions: Landlords are exempt from the rent cap under two circumstances:

1. The first certificate occupancy for the unit was issued less than 15 years from the date of the notice of rent increase; or
2. The unit is affordable housing under a federal, state or local program and the increase in rent:
   1. Does not increase the tenant’s portion of subsidized rent; or
   2. Is required by the federal, state, or local program or because of a change in the tenant’s income.

 

If a landlord is claiming exemption from the cap on the grounds mentioned above, the exemption must be noted in the 90-day rent increase notice.

 

City of Portland: Landlords in the City of Portland should note that the new statewide 10% rental cap does not override the City of Portland’s Relocation Assistance Program requirements under  Portland City Code 30.01.085(c). Any rent increase of 10% or above, even if allowed under SB 611, will trigger a requirement that the landlord pay relocation assistance if their affected tenants request it. There are limited exemptions to Portland’s 10% increase rule. Landlords should consult with an attorney to inquire about exemptions before increasing City of Portland rents more than 9.9%.

 

HB 2634 moves the regulation of Recreational Vehicles out of the Manufactured Dwelling/Floating Homes portion of the ORLTA (ORS 90.505 – 90.850) and into the residential dwelling portion (ORS 90.100 – 90.465). ORS 90.505 – 90.850 now only applies to situations where the tenant owns a manufactured home or floating home, rents the space on which the manufactured or floating home is located, and that rented space is located inside a facility (manufactured housing park or marina).

All Recreational Vehicles are now subject to ORS 90.100 – 90.465. The bill begins by defining  “Recreational Vehicle Park” amending ORS 90.100 (38) (Definitions) to reference the existing definition of a recreational vehicle park in ORS 197.492.

ORS 197.492 (3)“Recreational vehicle park”:

(a)  Means a place where two or more recreational vehicles are located within 500 feet of one another on a lot, tract or parcel of land under common ownership and having as its primary purpose:

(A)   The renting of space and related facilities for a charge or fee; or

(B)   The provision of space for free in connection with securing the patronage of a person.

(b) Does not mean:

(A) An area designated only for picnicking or overnight camping; or

(B) A manufactured dwelling park or mobile home park.

 

The ORLTA only applies to Recreational Vehicles and Recreational Vehicle Parks that are used for full time dwellings, and not those RVs used for camping or vacation purposes. HB 2634 further amends the definition of “Vacation Occupancy” (now ORS 90.100(52)) to exempt certain types of vacation-only rentals from the ORLTA. With regard to RV rentals, “vacation occupancy” is defined as follows:

ORS 90.100(52) “Vacation occupancy” means occupancy in a dwelling unit, not including transient occupancy in a hotel or motel, that: […]

(b) Is for the rental of a space in a recreational vehicle park on which a recreational vehicle owned by the occupant will be located and for which:

(A) The occupant rents the unit for vacation purposes only, not as a principal residence;

(B) The occupant has a principal residence other than at the space;

(C) The period of authorized occupancy does not exceed 90 days;

(D) The recreational vehicle is required to be removed from the park at the end of the occupancy period before a new occupancy may begin; and

(E) A written agreement is signed by the occupant that substantially states: “Your occupancy of this recreational vehicle park is a vacation occupancy and is NOT subject to the Oregon Residential Landlord and Tenant Act (ORS chapter 90).”

 

The Bill also makes slight changes to ORS 90.425 (Disposition of Personal Property Abandoned by Tenant). Under the ORLTA, when attempting to dispose of an abandoned recreational vehicle, the landlord must provide notice to the tenant. In return, the former-tenant now has 5 days, with personal service, or 8 days with service by first class mail, to contact the landlord and make arrangements for the disposal of the abandoned RV. The prior law required a 45-day notice period.

 

Additionally, the Bill now allows a landlord to destroy or dispose of a presumably abandoned recreational vehicle if the current market value is determined to be less than $4,000. A landlord may also choose to use the procedure for removing an abandoned motor vehicle under ORS 98.830 to remove an abandoned RV.

 

The rules outlined above apply only to residential tenancies or vacation occupancy entered into on or after January 1, 2024, the effective date of this law.