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Virtually all forms of “familial discrimination” became illegal under the FHAA, such as the refusal to rent to tenants because they had children; imposing different terms or conditions of rental depending upon whether they had children; discouraging persons from living in a manufactured housing community if they had children, etc.

The FHAA created certain exemptions, or “safe harbors,” from the prohibition against familial discrimination.  The primary one, embraced by many manufactured housing communities, was the 55+ age exemption.  On May 3, 1999, the Housing for Older Persons Act (HOPA) became effective.  HOPA substantially relaxed the earlier highly restrictive – and unworkable - requirements initially established by the FHAA for housing providers to qualify for the 55+ exemption.   Under the FHAA and HOPA, a housing provider may now, without fear of violating the law, legitimately refuse to rent or sell to persons with families, if the provider properly qualifies under the 55+ exemption.

Currently, in order to qualify for the 55+ exemption under the FFHA and HOPA, a community must:

1. Be intended and operated for persons age 55 or over.  This intent can be met by such things as (1) The manner in which the community is described to prospective residents; (2) Advertising designed to attract prospective residents; (3) Lease or rental provisions; (4) The written rules and regulations; (5) Consistent application of the rules, regulations and procedures; (6) Actual practices; and (7) Publicly posting statements describing the facility as a 55+ community.   The age verification procedures must be updated every two years.  This means maintaining a complete file on each space, including with the tenant application updated information, circulated every two years, confirming the names and ages of all persons who are currently residing in the home.

2.  Have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical.   Generally, communities strive to be over 80%, since falling below 80% means immediate disqualification.  Does this mean that the 20% margin must be reserved for families with children?  The answer is “No.”  In fact, a 55+ community may to strive for 100% occupancy

by persons age 55 or over.  Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age or older?  Again, the answer is “No.”  If desired, the community may increase the age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years.   Similarly, the community can make the 55+ requirement “more restrictive” e.g. by either saying EVERYONE has to be 55+ or that the minimum age must be OVER 55+.  The only limitation by the federal government is that the age requirement can’t be LESS restrictive, e.g. under 55, or less than 80% occupied. However, it is important for park owners and managers to make sure that all such age/occupancy requirements be properly reflected in the community’s rules and statement of policy – and be consistently applied. 

3. Publish and adhere to policies and procedures that demonstrate an intent to be operated as a 55+ community.This requirement is fairly self-explanatory.  The community must make sure that in all that it does, from its advertising, rules, rental agreements, and all other policies, always hold itself out in writing as a 55+ facility. 

4.            Comply with HUD age verification of occupancy procedures to substantiate compliance with the requirement that 80% of the facility be intended to be occupied by at least one person age 55 or over. The law provides that the following documents are considered reliable for such verification: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older. 

When the FHAA was first enacted, it imposed an additional requirement mandating that all 55+ communities must have “significant facilities and services” meeting the needs of older persons.  This requirement quickly became a stumbling block for otherwise qualified housing providers from ever obtaining the exemption.  HOPA deleted that requirement, and imposed a transition period for facilities to attempt to meet the 80% requirement.  The period began on the effective date of the law, May 3, 1999, and ended one year later.  During that transition period, HOPA permitted communities that otherwise qualified – without the “significant facilities and services” requirement – to reserve space for 55+ applicants.  This meant that during the one year period, communities could legally decline to rent or sell to families without violating the FHAA.  However, communities that tried but failed during the one year transition, were then expected to commence renting and selling to families.

However, one major question still exists:  What about communities that, for whatever reason, did not qualify for 55+ status?  This would include those that tried but failed; those that never tried because they wanted to be a family facility; or those that were unaware of the HOPA transition period in the first place.  What if today, a community already has qualified under the 80% rule, but still holds itself out as a family facility?  Assuming that it does not discriminate in any respect against the existing families, nor against all those who have applied for occupancy, may it “convert” to a 55+ community, by holding itself out as such, and otherwise meet the HOPA requirements?  This is an open – but inviting  - question.  It would seem that if the community could meet the HOPA requirements in all respects (not because it discriminated in getting there, but simply by attrition of family occupants and the influx of more 55+ residents), it should be permitted to do so.  The process would be fairly simple:  Implement a rules change, combined with new published policies and age verification procedures, which confirm the 55+ status. 

One caveat:  Even though the Oregon landlord-tenant law does permit rules changes to implement material modifications in the parties’ bargain, there is a risk of possible argument by families in the community, complaining that they are now limited in the pool of available buyers for their homes.  However, it would seem that this risk could be remedied, by “grandfathering” those family residents in, thereby permitting them to sell their homes to other families.  This assumes, of course, that by doing so, the community would not jeopardize its 80%-20% ratio.  Before proceeding down this path, park owners are urged to contact their own legal counsel familiar with the FFHA and HOPA for advice and direction.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, familial status, national origin, and disability. Fair housing law bans communities from denying housing to anyone—or discriminating against them in the terms, conditions, or privileges of residency—based on any of these protected characteristics.

The law doesn’t stop you from holding residents accountable for their own bad behavior, but they may accuse you of discrimination when taken to task for breaking the rules. They may claim that you’re falsely accusing them of breaking the rules—or treating them more harshly than other residents for similar infractions—because they’re members of a protected class.

Sometimes the rules themselves come under attack. Communities may enforce rules to ensure safety, prevent property damage, and protect the quiet enjoyment of the property by other residents, but it’s unlawful to do so in a way that unreasonably interferes with the right of families with children to use and enjoy the community’s common areas and amenities.

Moreover, fair housing law may exempt some residents from following the rules under certain circumstances. As part of the law’s ban on disability discrimination, it’s unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. Because a community’s policies may have a different effect on people with disabilities than on others, HUD says that treating residents with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy the premises. So you may be required to make exceptions to your rules—such as no-pet policies or parking restrictions—as a reasonable accommodation for a resident with a disability.

Fair housing law doesn’t require communities to approve all accommodation requests. For example, a request for a reasonable accommodation may be denied if providing the accommodation is not reasonable—that is, if it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. In such cases, federal guidelines say that communities should engage in an “interactive process” with the person making the request to discuss whether there’s an alternative accommodation that would effectively address his disability-related needs.

8 DOS & DON’TS FOR DEALING WITH RESIDENTS WHO BREAK THE RULES

RULE #1: 

DO Hold Residents Accountable for Rules Violations 

DON’T Be Afraid to Take Action When Necessary

You may expect all residents to abide by the lease and community rules, and you may take action against anyone who fails to do so. Fair housing law bans discrimination against members of protected classes, but it doesn’t excuse residents from following the rules, regardless of their race or any other protected characteristic.

Don’t let your fear of a fair housing claim prevent you from applying your policies fairly and consistently. If action is required, don’t fail to act because you’re afraid the resident will file a fair housing complaint against you. Just talk to your attorney first to make sure that all of your community’s actions are documented and justified.

Example: In 2013, a Washington public housing community fought off a fair housing complaint filed by a resident who was threatened with eviction for feeding pigeons and allowing them to nest on his deck. The community’s rules prohibited the feeding of stray animals and wildlife, so he received several warnings that he’d be evicted if he didn’t stop. He eventually complied and no further action was taken against him, but the resident sued the community for discriminating against him because of his race. He failed to prove that he was being falsely accused since he admitted that he allowed the pigeons to nest on his deck. And the court rejected his claim that nonminority residents fed the pigeons and were not disciplined, noting that other residents viewed the pigeons as a nuisance and were trying to get rid of them in various ways, including poison [Bahati v. Seattle Housing Authority, September 2013].

To ward off fair housing trouble, it’s a good idea to have a written policy detailing your standards of conduct so all prospects, residents, and staff members understand what behaviors constitute lease violations. Putting it down on paper heads off claims that the resident didn’t know about the rules or understand the consequences of breaking them.

Make sure that your rules conform to state and local requirements by asking your attorney for help in drafting a policy that defines what conduct is considered a lease violation. Make the rules as specific as possible—for example, by quantifying how many times an act must be committed before it’s considered a lease violation, how much time you’ll give a resident to correct his behavior, and so on. Your policy should also detail the procedures for investigating, resolving, and documenting complaints against residents for violating the lease and community rules.

Over the next couple weeks, MHCO will be posting articles that go into detail on the remaining 7 rules for dealing with residents who break the rules.

RULE #2: 

DO Apply Community Rules Fairly and Consistently

DON’T Make Exceptions for Residents Simply Because You Like Them

RULE #3:

DO Be Prepared for Reasonable Accommodation Requests

DON’T Ignore Disability-Related Requests for Exceptions to the Rules

RULE #4:

DO Consider Accommodation Requests for Assistance Animals

DON’T Refuse to Make Any Exception to Pet Policies

RULE #5: 

DO Enforce Rules to Prevent Harassment, Maintain Safety 

DON’T Ignore Accommodation Requests Related to Disruptive Conduct 

RULE #6: 

DO Enforce Rules Governing Common Areas

DON’T Unreasonably Limit Children’s Activities

RULE #7:

DO Be Prepared for Potential Retaliation Claims

DON’T Crack Down Because of a Prior Fair Housing Complaint 

RULE #8: 

DO Keep Good Records to Counter Discrimination, Retaliation Claims 

DON’T Neglect Your Paperwork 

MHCO Note:  Although the limit for 2025 will be set at 10%, housing providers should be aware that legislative action in 2025 could quickly change the limit formula downward.

|Published: Sep. 23, 2024, 'Oregonian'.

Oregon landlords are allowed to raise rents by up to 10% in many residences next year, state officials said on Monday.

Oregon passed its first-in-the-nation rent control law in 2019 in what supporters cast as a way to stabilize unregulated price increases. Lawmakers modified the law in 2023 to set a ceiling at the lesser of 7% plus inflation or 10%.

Since Oregon implemented rent control in 2019, the cap has equaled about 9% to 10%, according to the Department of Administrative Services, except in 2023 when it reached 14.6% for half the year amid blistering inflation.

That was a turning point for the statewide law, as renters’ rights groups expressed dismay and claimed the high allowable increases would cause more evictions.

Landlord representatives have said that property taxes and housing demand are generally more influential on their pricing decisions that the rent cap formula, and that most rent increases come in below the statutory maximum.

The rate reset to 10% in mid-2023 after lawmakers voted to install an upper limit. It held at 10% in 2024 and will be the same in 2025, as calculated by the stats’s Office of Economic Analysis, which by law must issue a rate by Sept. 30 annually.

The law doesn’t affect rentals built in the past 15 years. It only regulates older houses and apartments

Introduction. Effective July 6, 2023 Oregon Senate Bill 611 amended Oregon’s landlord-tenant Rent Cap law. Section 5 of the Bill applies to manufactured housing tenancies and essentially mirrors the non-manufactured home tenancy section. SB 611 was substantially similar to its predecessor law capped the maximum rent increase at 10%.  For the period October 1, 2024 through September 30, 2025, the maximum rent increase is capped at 10%.  This is the same as last year for the same period.

The Rent Cap does not apply if the certificate of occupancy of the dwelling is less than 15 years, or the property is on a state/local/federal affordable housing program.

The Calculation. Unless exempted (discussed below), a rent increase for any calendar year may notexceed the lesser of: (a) ten percent (10%) or (b) the sum of seven percent (7.00%) times the Current Rent(7% X Current Rent) plus the percentage change in the consumer price index (“CPI”) times the CurrentRent (the % of CPI Change X Current Rent), hereinafter collectively referred to as the “Rent Cap”).

Publication of Consumer Price Index (“CPI”): This is the annual 12-month average change in theConsumer Price Index for All Urban Consumers, West Region (All Items). It is published by the Bureauof Labor Statistics (“BLS”) at the end of September of each year. Landlords are to use the CPI numbers that are operational on the date when the rent increase notice is sent.

If a rent increase notice is sent out before the September 30, 2024 CPI numbers are out, landlords must use the current (pre-9/30/2024 CPI calculation). The maximum rent increase will always be between 7.00% and 10%.

Caveat:  Landlords in the City of Portland should note that the SB 611 statewide 10% rental cap does not appear to 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%.

MHCO Form 49 (90 Day Rent Increase Notice). We amended the form last year, so no new change is required.[1]  The 2023-2024 rent cap will be operational until Sept 30, 2024.[2]  However, the 2024-2025 Rent Cap of 10% is the same as 2023-2024 after SB 611 became effective.

Form 49 is the 90-day rent increase notice. If landlords wait until the new CPI numbers come out in late September 2024, the earliest the rent increase would go into effect 90 days hence, so essentially January, 2025.

Example. Assuming I issue a 90-day notice on October 1, 2024 using MHCO Form 49,  the Rent Cap would be 10% because the post-Sept. 30, 2024 CPI number is 3.2%, and 10% is less than 10.2% (7% + 3.2%). The earliest my rent increase would go into effect is December 30 (assuming manual delivery or attached and mail – if regular mail, add at least 3 calendar days).

Refresher on Oregon Rent Increases.

Here are points to remember on the entire rent increase issue for park owners:

1. No later than September 30th of each year, the Oregon Department of Administrative Serviceswill calculate and publish in a press release the maximum annual rent increase percentage for thefollowing calendar year as the lesser of:

1. Ten percent; or
2. Seven percent plus the September annual 12-month average change in the Consumer PriceIndex for All Urban Consumers, West Region (All Items), as most recently published bythe Bureau of Labor Statistics of the United States Department of Labor.

2. If a tenancy is a week-to-week tenancy, the landlord may not increase the rent withoutgiving the tenant written notice at least seven days prior to the effective date of the rent increase.

3. During any tenancy other than week-to-week, the landlord may not increase the rent:
   1. Without giving the tenant written notice at least 90 days prior to the effective date of therent increase.
   2. More than once in any 12-month period.
   3. By a percentage greater than the Cap.

4. The rent increase notice must specify:
   1. The amount of the rent increase;
   2. The amount of the new rent;
   3. Facts supporting the exemption, and
   4. The date on which the increase becomes effective.

5. A landlord terminating a tenancy with a 30-day notice without cause as authorized by ORS 90.427 (3) or (4) during the first year of a tenancy may not charge rent for the next tenancyin an amount greater than the maximum amount the landlord could have charged the terminated tenancy under this section.

6. A landlord is not subject to the above rent cap rules if:
   1. The first certificate of occupancy for the dwelling unit was issued less than 15 yearsfrom the date of the notice of the rent increase; or
   2. The dwelling unit is regulated or certified as affordable housing by a federal, state orlocal government and the change in rent:
   3. Does not increase the tenant’s portion of the rent; or
   4. The increase is required by program eligibility requirements or by a change in the tenant’sincome.

7. A landlord that increases rent in violation of is liable to the tenant in an amount equal tothree months’ rent plus actual damages suffered by the tenant.

8. Tenant Committees. Tenants who reside in a manufactured community may elect one committee of seven or fewer members in a facility-wide election to represent the tenants. One tenant of record for each rented space may vote in the election. Upon written request from thetenants’ committee, the landlord or a representative of the landlord shall meet with the committeewithin 10 to 30 days of the request to discuss the tenants’ non-rent concerns regarding the facility.Unless the parties agree otherwise, upon a request from the tenants’ committee, a landlord orrepresentative of the landlord shall meet with the tenants’ committee at least once, but not morethan twice, each calendar year. The meeting shall be held on the premises if the facility has suitable meeting space for that purpose, or at a location reasonably convenient to the tenants. After themeeting, the tenants’ committee shall send a written summary of the issues and concerns addressedat the meeting to the landlord. The landlord or the landlord’s representative shall make a good faith response in writing to the committee’s summary within 60 days. The tenants’ committee may be entitled to informal dispute resolution under ORS 90.769 if the landlord or landlord’s representative fails to meet with the tenants’ committee or fails to respond in a good faith to the written summary from the committee

[1] Note: Form 49 does not contain a place to insert the facts  supporting the  exemption if the certificate of occupancy is more than 15 years, or the property is on a state/local/federal affordable housing program. Neither does it require landlords to do the calculations under SB 611. It just contains a place to insert the new rent amount.

[2] Note: Form 49 (and the ORLTA) specify a 90-day minimum notice, not a maximum. You can give as much additional notice as you want. You can issue a notice now that increases rent on Jan 1, or you can wait until the new CPI numbers come out and issue a notice 90-day notice for January 2025. Just don’t forget maximum increase is 10% unless subject to an exemption.

Even when you have solid evidence that a resident has violated the lease or your community’s rules, he may try to turn the tables by questioning your motives. Unless you’ve applied the rules fairly and consistently, you could suddenly find yourself on the defense if it looks as though you’re acting in a discriminatory manner.

For example, the resident may argue that you took a hard line against him for breaking the rules only because he was a member of a protected class, and his claim could get some traction if he can show that you allowed other residents—who did not share his protected characteristic—to get away with the same or similar infractions. Evidence of inconsistent enforcement of your rules could lead a court to conclude that his violation of the rules wasn’t the real reason for evicting him, but merely an excuse to cover up unlawful housing discrimination.

Avoid the temptation to bend the rules for some people, but not for others, just because you happen to be friends with them or you think they’re nice people. You may not intend to discriminate against anyone, but treating some residents better than others may give the impression that you have discriminatory reasons for holding other residents to higher standards

Example: In 2013, a Washington public housing community fought off a fair housing complaint filed by a resident who was threatened with eviction for feeding pigeons and allowing them to nest on his deck. The community’s rules prohibited the feeding of stray animals and wildlife, so he received several warnings that he’d be evicted if he didn’t stop. He eventually complied and no further action was taken against him, but the resident sued the community for discriminating against him because of his race. He failed to prove that he was being falsely accused since he admitted that he allowed the pigeons to nest on his deck. And the court rejected his claim that nonminority residents fed the pigeons and were not disciplined, noting that other residents viewed the pigeons as a nuisance and were trying to get rid of them in various ways, including poison [Bahati v. Seattle Housing Authority, September 2013].

To ward off fair housing trouble, it’s a good idea to have a written policy detailing your standards of conduct so all prospects, residents, and staff members understand what behaviors constitute lease violations. Putting it down on paper heads off claims that the resident didn’t know about the rules or understand the consequences of breaking them.

Make sure that your rules conform to state and local requirements by asking your attorney for help in drafting a policy that defines what conduct is considered a lease violation. Make the rules as specific as possible—for example, by quantifying how many times an act must be committed before it’s considered a lease violation, how much time you’ll give a resident to correct his behavior, and so on. Your policy should also detail the procedures for investigating, resolving, and documenting complaints against residents for violating the lease and community rules.

Answer: This is a timely and important question. In March 2023 HB 2001 was enacted, which reinstated some of the earlier Pandemic tenant protections including restoring the 10-day and 13- day period in nonpayment of rent notices. It also enacted a new notice that must accompany it.[1]

Also, HB 2001 adopted a new expandeddefinition of the term “Nonpayment”:

“Nonpayment” means the nonpayment of a payment that is due to a landlord, including apayment of rent, late charges, utility or service charges or any other charge or fee as describedin the rental agreement or ORS 90.140, 90.302, 90.315, 90.392, 90.394, 90.560 to 90.584 or90.630.[2] “Nonpayment” does not include payments owed by a tenant for damages to the premises.

Of importance to the above rent-tender question is the following provision in HB 2001:

2. A court shall enter a judgment dismissing a complaint for possession that is based ona termination notice for nonpayment if the court determines that:
   1. The landlord failed to deliver the notice as required under subsection (2) of this section;
   2. The landlord caused the tenant to not tender rent, including as a result of the landlord’s failure to reasonably participate with a rental assistance program; or
   3. The tenant has tendered or caused to be tendered rental assistance or any other payment covering the nonpayment amount owed under the termination notice for nonpayment. (Emphasis added.)

So, to the question of whether the resident must pay the landlord’s filing fee after having to file the eviction the answer is a “Yes.” See, ORS 90.395(5):

(5) Notwithstanding ORS 90.302, a landlord may charge a tenant for filing fees paid under ORS 105.130, if the complaint for possession is dismissed under subsection (3)(c) of this section. Payment of the fees is not a prerequisite for dismissal under subsection (3)(c) of this section. [2023 c.13 §55]

But this does not mean the landlord should refuse the rent-tender unless it is accompanied by the filing fee.

The Take-Away.  It is my opinion[3] that HB 201 results in the following approach for MHP landlords:

1. If rent is not paid after the time prescribed in the Nonpayment of Rent Notice, and before filing the eviction, the landlord should make one last reasonable effort such as a call, visit or email, to see if the resident will pay immediately. It should not include threats or intimidation. If the resident pays, the landlord will have a right to assess late charges if provided in the rental agreement, but should accept the rent even if the late charge is not tendered.

2. If the FED is filed and the tenant pays before going to court, the landlord should accept it even if the landlord’s filing fee is not reimbursed.

3. If the tenant tenders rent at the first appearance in court the landlord should accept it even if the filing fee is not reimbursed.

4. Recovery of the landlords filing fees for the FED, late fees, and other “nonpayments” (as defined above) can be sought by following the default procedures in ORS 90.630. (I cannot forecast what the FED judge might do if the matter goes past the first appearance, but my suspicion is that unless the tenant demands a trial, the court would dismiss if rent paid at the time. Whether a judgment of restitution is issued if rent is not paid at that time is up to the judge; I would foresee a judgment of dismissal if paid the same day or a similar result to avoid the eviction and still get the rent paid.)

[1] Note there are several additional provisions including new first-appearance requirements; mandating landlord declarations for default judgments; changes to first appearance scheduling; and subject to specific court findings, an annual setting-aside of eviction-related judgments occurring after January 1, 2014; and new rent assistance fund provisions.

[2] ORS 90.630 is the statute important to MHP landlords, since it deals with defaults (other than nonpayment of rent) in manufactured housing communities.

[3] This article is not legal advice, It is my opinion only, based upon my reading of HB 2001. Members should check with their own legal counsel.

HUD recently announced that it has charged a landlord and its property managers in Manchester, N.H. with violating the Fair Housing Act by retaliating, threatening, or interfering with a tenant’s fair housing rights. The charge alleges that, after the tenant filed a Fair Housing complaint with HUD, the landlord and property manager conducted a background check on the tenant, contrary to their usual practice of not running background checks on existing tenants, and then sought to evict the tenant based on a long-ago event that the background check turned up.

The Fair Housing Act prohibits housing providers from retaliating against tenants because they exercised their rights under the Fair Housing Act. “Today’s charge sends a strong message that HUD is committed to ensuring that tenants who exercise their fair housing rights are protected from retaliatory evictions,” Diane M. Shelley, HUD’s Principal Deputy Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

An administrative law judge will hear HUD’s charge unless any party to the charge elects to have the case heard in federal district court. If an administrative law judge finds, after a hearing, that discrimination has occurred, they may award damages to the individuals for their losses as a result of the discrimination. The judge may also order injunctive relief and other equitable relief, to deter further discrimination, as well as payment of attorney fees. In addition, the judge may impose civil penalties to vindicate the public interest. If the federal court hears the case, the judge may also award punitive damages to the complainant.

• |Published: Nov. 10, 2024, 6:00 a.m.

By Carlos Fuentes

While Democrats nationally react to stinging losses in the presidential race and U.S. Senate, Democratic lawmakers in Oregon received a boost in this fall’s election, flipping a key seat in the Legislature to expand their control in the state Senate.

However, the party appears to have failed to flip any seats in the House, leaving it just one seat short of regaining a powerful supermajority in both chambers, which would have allowed it to push through new taxes or increase existing ones without Republican support.

Although Democrats were widely expected to keep their legislative majority, it was less clear whether they could reclaim the three-fifths majority in both chambers they lost in 2022.

In the Senate, they managed to do so, flipping the Bend seat long held by former Senate Republican Leader Tim Knopp, who was barred from running for reelection for participating in a walkout during the 2023 legislative session.

Voters in that district had reliably supported Republicans for years before the map was redrawn in the wake of the 2020 census, turning it into what is likely to be a reliably blue district going forward. Democratic Bend City Councilor Anthony Broadman easily beat Redmond School Board Chair Michael Summers, a Republican, to claim the seat, with results as of Friday showing him up 59% to 41%.

“We are thrilled to be in the supermajority again,” Senate Majority Leader Kathleen Taylor, a Democrat from Southeast Portland, told The Oregonian/OregonLive. “Oregonians spoke up and said they wanted the Democrats to be running things, and they had the opportunity to make a different decision, but they absolutely chose the Democrats in a really strong way.”

Democrats didn’t fare quite as well in the House as four vulnerable House Republicans – Reps. Kevin Mannix, Tracy Cramer, Cyrus Javadi and Jeff Helfrich – all appeared to secure reelection.

Helfrich, the House Republican leader, led his Democratic opponent Nick Walden Poublon, a drug and alcohol prevention specialist, by just 1,000 votes as of Friday afternoon. The small margin separating the candidates comes despite Helfrich, who lives in Hood River, outraising his opponent $1 million to only $86,000.

While the race still remains too close to call, Helfrich, who trailed on election night, has since pulled ahead and extended his lead as more votes have been tallied.

Assuming results hold, Democrats will have an 18 to 12 supermajority in the Senate and a 35 to 25 majority in the House.

A Democratic supermajority in the Senate could have implications in next year‘s legislative session, in which lawmakers aim to create more funding sources to address a massive shortfall in Oregon’s transportation budget. However, Democrats’ failure to net any seats in the House could temper their power, especially since revenue bills must originate in the House and Democrats will need at least one Republican vote to pass any tax increases.

Democratic lawmakers are generally more supportive of tax increases than their Republican counterparts. For example, the 2019 Student Success Act, which raised corporate taxes to provide more funding for schools, passed with no Republicans voting in favor.

Officials say the need for more transportation funding is dire. The state transportation agency warned lawmakers earlier this year that it would have to lay off approximately 1,000 workers without more funding, and cities and counties have asked for increased state funding to better maintain their roads and traffic infrastructure.

Even when Democrats had a supermajority, “it definitely was always challenging to (raise taxes), because they’re serious votes,” Taylor said. “You don’t just say yes, you have to really be convinced that it’s the right thing to do.”

Although Republican lawmakers tend to oppose most proposals for new taxes, there are exceptions. Last year, four Republicans voted in favor of a bill that instituted a new tax on landlines and other telecommunications services to fund a suicide prevention hotline.

Republicans say it’s too early to determine which, if any, proposals to increase transportation funding they would support. Work groups are currently sifting through many options, including raising the state’s gas tax or imposing a tax on Oregon drivers based on the number of miles driven.

“We look forward to partnering with our colleagues on both sides of the aisle on bipartisan solutions to tackle our state’s challenges, but House Republicans will also serve as a crucial check against unnecessary tax increases,” Helfrich said in a statement.

Despite their Senate supermajority, top Democrats have said they want any transportation package next year to receive bipartisan support.

They point to past efforts that received bipartisan support, such as lawmakers this year rolling back Oregon’s landmark drug decriminalization law, as evidence that both parties can reach a consensus on the state’s most pressing issues.

“We do need a bipartisan majority in order to pass the transportation package, and I don’t think that’s a bad thing. I think that was always the plan,” said House Majority Leader Ben Bowman, a Democrat from Tigard. “If we’re going to get it done, it’s going to force us all to collaborate and work together.”

Despite some Democrats expressing hope for compromise, some Republicans remain skeptical about the promise of bipartisan cooperation.

“As far as policy goes, under a supermajority, (Democrats) don’t have to have any discussion about it with us,” said Deputy Senate Minority Leader Cedric Hayden, a Republican from Fall Creek. “They just choose what they’re going to put through, and that’s it.”

As the minority party, Republicans have few options to prevent Democrats from passing their full agendas. In recent years, they have increasingly resorted to boycotting floor sessions to deny Democrats the two-thirds quorum necessary to vote on bills, but the days of extended walkouts might be over.

Measure 113, passed by voters in 2022, prohibits lawmakers from running for reelection if they accumulate 10 or more unexcused absences from floor sessions. Ten Republicans who participated in a six-week walkout in 2023 were barred from seeking reelection under the law.

“The whole system is set up so that one side has the authority,” Hayden said. “For me, that’s a bit of a stretch to say, ‘It’s gonna be great, it’s gonna be bipartisan.’ But we’ll see.”

Answer:  The short answer is Yes. The utilities section of the manufactured housing side of Oregon’s landlord-tenant law is ORS 90.560(4) provides:

• “Public service charge” has the meaning given the term in ORS 90.315 (Utility or service payments).
• ORS 90.315(1) defines:
  •  “Public services” payments to mean ‘municipal services and the provision of public resources related to the dwelling unit, including street maintenance, transportation improvements, public transit, public safety and parks and open space. (Emphasis added); and
  • “Public service charge” means a charge imposed on a landlord by a utility or service provider, by a utility or service provider on behalf of a local government or directly by a local government. (Note: public service charge” does not include real property taxes, income taxes, business license fees or dwelling inspection fees.)
• ORS 90.570 provides: “A landlord, upon 60 days’ written notice to a tenant, may unilaterally amend a rental agreement[1]to require a tenant to pay to the landlord, as part of the utility or service charge, a pro rata proportion of any new or increased public service charge billed to the landlord by a utility or service provider or a local government for a public service provided directly or indirectly to the tenant’s dwelling unit or to the facility common area.” (Emphasis added.)
• ORS 90.568 addresses “pro-rata billing” as follows:
  • “If allowed by a written rental agreement, a landlord using pro rata billing may require a tenant to pay to the landlord a utility or service charge that was billed by a utility or service provider to the landlord for a utility or service provided directly to the tenant’s space or to a common area available to the tenant as part of the tenancy. A landlord may include in pro rata billing a public service charge under ORS 90.570 (Public service charge pro rata apportionment).” (Emphasis added.)
  • A pro rata billing charge for tenants’ spaces must be allocated among them by a method that reasonably apportions the cost among the affected tenants and that is described in the rental agreement.
  • Methods that reasonably apportion the cost among the tenants include, but are not limited to, methods that divide the cost based on:
    • • • • The number of occupied spaces in the facility;
          • The number of tenants or occupants in the dwelling or home compared with the number of tenants or occupants in the facility, if there is a correlation with consumption of the utility or service; or
          • The square footage in each dwelling, home or space compared with the total square footage of occupied dwellings or homes in the facility or the square footage of the facility, if there is a correlation with consumption of the utility or service.
• A utility or service charge to be assessed to a tenant for a common area must be described in the written rental agreement separately and distinctly from the utility or service charge for the tenant’s space. (Emphasis added.)

Conclusion and Caveats. So, yes, to the above question: Prepare a 60-day written Notice of Unilateral Amendment explaining the public service charge and the pro-rata allocation approach. Keep records of these utility charges for tenants to inspect if they want, and when they increase, make sure tenants are notified as soon as possible.  Just like increases in utility rates, they may be passed along – they don’t require additional advance notice.

Utility pass-throughs can be very complicated for a variety of reasons. First and foremost, the legislation is created by committees of stakeholders including industry representatives for landlords (park and non-park owners), tenants, utility companies, lenders, and other interested parties. The results can be confusing, especially so because Oregon’s landlord-tenant law contains a “soft” bifurcation between non-MHPs and MHPs. I say “soft” because the MHP side, ORS 90.505+ occasionally depends upon and includes provisions from the non-MHP side, i.e., ORS 90.100 – ORS 90.493. These observations are not to diminished the legislative drafters’ skills – they must work with what they have.

Familiarity with MHP utility laws i.e., ORS 90.560 to ORS 90.584 (including various stealth statutes that precede ORS 90.560!) requires time, patience, and care. The above summary responds only to the limited question presented. It does not address the MHP landlord’s responsibility to make sure that all park documents address the current utility rules applicable to their park and are sufficiently explained to incoming tenants. If in doubt, legal counsel should always be consulted. ~ Phil

[1] Note: I recommend that each time a landlord seeks to “unilaterally amend” the rental agreement under Oregon law, a documents entitled “Unilateral Amendment” (or similar caption) be delivered to all affected tenants pursuant to ORS 90.155with the same diligence as if they were issuing a rent increase notice. This is really the only way the 60-day notice requirement can be established.