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Answer. You are referring to ORS 90.532 (4) (Billing methods for utility or service charges; system maintenance; restriction on charging for water.) which provides:

(4) To assess a tenant for a utility or service charge for any billing period, the landlord shall give the tenant a written notice stating the amount of the utility or service charge that the tenant is to pay the landlord and the due date for making the payment. The due date may not be less than 14 days from the date of service of the notice.

However, this is the 2009 statute. You should be relying upon is subsection (6) of the 2015 version of ORS 90.532, which provides:

(6) To assess a tenant for a utility or service charge for any billing period using the billing method described in subsection (1)(b)(C)(ii) or (c) of this section, the landlord shall give the tenant a written notice stating the amount of the utility or service charge that the tenant is to pay the landlord and the due date for making the payment. The due date may not be before the date of service of the notice. The amount of the charge is determined as described in ORS 90.534 or 90.536. If the rental agreement allows delivery of notice of a utility or service charge by electronic means, for purposes of this subsection, “written notice” includes a communication that is transmitted in a manner that is electronic, as defined in ORS 84.004. If the landlord includes in the notice a statement of the rent due, the landlord shall separately and clearly state the amount of the rent and the amount of the utility or service charge.

To appreciate the differences, I’ve set out below a mark-up of the changes, showing how the 2015 statute differs from the 2009 law (grey text was stricken, and yellow text was added):

90.532 (4) (Billing methods for utility or service charges; system maintenance; restriction on charging for water.) provides:(6) To assess a tenant for a utility or service charge for any billing period using the billing method described in subsection (1)(b)(C)(ii) or (c) of this section, the landlord shall give the tenant a written notice stating the amount of the utility or service charge that the tenant is to pay the landlord and the due date for making the payment. The due date may not be less than 14 days from the date of service of the notice.before the date of service of the notice. The amount of the charge is determined as described in ORS 90.534 or 90.536. If the rental agreement allows delivery of notice of a utility or service charge by electronic means, for purposes of this subsection, “written notice” includes a communication that is transmitted in a manner that is electronic, as defined in ORS 84.004. If the landlord includes in the notice a statement of the rent due, the landlord shall separately and clearly state the amount of the rent and the amount of the utility or service charge.

So ORS 90.532 was amended in 2013. Per John VanLandingham[1], who participated in making the change, when the 14 day deadline for payment was deleted, it was recognized that the way for landlords to enforce nonpayment of a utility charge was through the 30-day, curable notice, under 90.630 (Termination by landlord).  MHCO member, Phil Taylor, led the push for this legislation. (See, HB 3482, chapter laws 443 2013). This is now clarified in the current ORS 90.532(7):

A utility or service charge is not rent or a fee. Nonpayment of a utility or service charge is not grounds for termination of a rental agreement for nonpayment of rent under ORS 90.394 (Termination of rental agreement for failure to pay rent), but is grounds for termination of a rental agreement for cause under ORS 90.630 (Termination by landlord). A landlord may not give a notice of termination of a rental agreement under ORS 90.630 (Termination by landlord) for nonpayment of a utility or service charge sooner than the eighth day, including the first day the utility or service charge is due, after the landlord gives the tenant the written notice stating the amount of the utility or service charge. (Emphasis added.)

Prior to these changes, the statutes were confusing as to when a utility charge was due, and when it was late, for purposes of issuing a termination notice. Now, the utility charge is due upon delivery of the bill.  If it is not paid by the 8th day after delivery, it is considered late, and a landlord can give a curable 30-day cause termination notice. The cause of the notice is non- payment of the utility charge, and the cure is payment.   

                     
Conclusion. The take-away here for readers is to always make sure you’re reviewing the latest statute. The best resources is the Oregon Legislature website: https://www.oregonlegislature. gov/bills_laws/Pages/ORS.aspx.  You will note that at the bottom of each statute is the legislat- ive history, i.e. the amendments that preceded it. This website also contains a link to the archives, i.e. the earlier versions of the statutes: https://www.oregonlegislature.gov /bills_ laws/ Pages/ORSarchive.aspx  

[1] John’s invaluable assistance is gratefully acknowledged in explaining the legislative history of these changes above.

Termination for Continuing Violations. In manufactured housing communities, the type of conduct that would make a tenant subject to this 30-day termination notice is the failure to maintain the space which is required under the rules or rental agreement. MHCO Form 43 would be used which – at the title states – is “for continuing violations only.” ORS 90.630(3)(d) defines this as conduct that is “constant or persistent or has been sufficiently repetitive over time that a reasonable person would consider the conduct to be ongoing.”

This form is to be completed according to its instructions must specify, in detail, if necessary (including pictures if appropriate):  (i) the reason for the violation: (ii) the source of the violation, e.g., rules, rental agreement, statute, etc.; and (iii) at least one possible remedy. If the violation is cured within the 30-day period, the problem is solved. If it is not cured, the landlord has the right to then file for eviction (being sure to append the 30-day notice to the complaint). Taking photos of the condition upon which the notice is based on the date of the notice and the 31st day thereafter is essential for use in court.

Termination for Distinct Acts or Omissions. However, when the violation is a single event, such as speeding in the community; loud music or other disturbances; fighting; threats of violence, etc., things become more complicated since the landlord does not want to give the tenant 30 days to stop engaging in the offensive activity.  For that reason, landlords must use MHCO Form 43A for violations that constitute a “distinct act or omission.”

The protocol in completing this form is much different than Form 43 and must be followed carefully; it can get confusing. Here it is:

1. The “Deadline” to correct the violation can be no sooner than the 4th day after the date of the notice if hand-delivered or mailed and attached, or the 7th day after the date of the notice if sent via regular mail. (Although not required by law, it is recommended that landlords obtain a certificate of mailing from the post office if regular mail is used.)

2. Similar to Form 43, in 43A the basis for the violation (e.g., rules, rental agreement, etc.) the violation, and the event(s) to cure must also be specified with particularity.

3. If correction does not occur by the Deadline, the tenancy automatically ends on the “Termination Date” which must be at least 30 full days after the date of the notice.  Thus, if the tenant is not out by the Termination Date, the eviction may be filed.  Filing for eviction before the Termination Date would, in my opinion, be premature, since the tenant still has the right to remain at the space for the balance of the month. For repeat violations, see (iv) below.

4. If substantially the same violation occurs within six months following the date of the notice (43A), the landlord may terminate with 20 days written notice to the tenant and there is no right to cure.

Conclusion.  The above discussion is a summary only. There are various nuances. Conduct by a pet or assistance animal is not included. Note there can be some overlap with conduct triggering the 24-hour notice statute under ORS 90.396 (which may be preferable if the conduct involves health and safety). Accordingly, if you have questions that are not answered by the above, check with you legal counsel before filing the notice and before filing an eviction based upon the notice.

[1] Note that rules and regulations are also considered a part of the “rental agreement.”

Answer: As to your question regarding the assessment of a late fee, here is what ORS 90.260(1) provides:

(1)A landlord may impose a late charge or fee, however designated, only if:

(a)The rent payment is not received by the fourth day of the weekly or monthly rental period for which rent is payable; and

(b)There exists a written rental agreement that specifies:

(A)The tenant's obligation to pay a late charge on delinquent rent payments;

(B)The type and amount of the late charge, as described in subsection (2) of this section; and

(C)The date on which rent payments are due and the date or day on which late charges become due. (Underscored text in italics are mine.)

I know of no other statute that directly addresses this issue. So assuming that:

• Your Rental Agreement makes it clear that the rent check must be received on or before the fourth of the month;
• The type and amount of late charge; and
• The date (a) rent payments are due (e.g. the first of the month), and (b) when the late charge would be due (e.g. the fifth of the month, or later),

I would conclude that you may assess a late charge where residents mail in their rent checks, but they are not received until the fifth of the month or later.

However, a word of caution: If you are going to institute this policy, it must be done uniformly and consistently for all residents. I suspect that some folks may believe that by mailing their checks on the fourth (based upon the postmark), their rent payment is timely, i.e. no late charge will be assessed. You want to make sure your residents understand that since they have the option of manually delivering their rent to the manager's office (or presumably dropping it into a box when the office is closed), that selecting the use of the mails requires that the rent is received - not simply deposited in a mailbox - could result in the assessment of a late charge if the check is received on the fifth or later.

Note, that ORS 90.394(4) provides:

(4) Payment by a tenant who has received a (72-hour or 144 hour) notice *** is timely if mailed to the landlord within the period of the notice unless:

(a)The notice is served on the tenant:

(A)By personal delivery as provided in ORS 90.155(Service or delivery of written notice) (1)(a); or

(B)By first class mail and attachment as provided in ORS90.155 (Service or delivery of written notice) (1)(c);

(b)A written rental agreement and the notice expressly state that payment is to be made at a specified location that is either on the premises or at a place where the tenant has made all previous rent payments in person; and

(c)The place so specified is available to the tenant for payment throughout the period of the notice. (Underscored text in italics are mine.)

Although this statute does not expressly say that proof of mailing is determined by the postmark (and I have not researched this based upon Oregon case law), for purposes of the payment of property taxes in Oregon, as well as state and federal income taxes, the postmark date is what is relied upon in determining whether the payment was timely. In other words, by analogy (without the benefit of legal research), I would conclude that timely mailing, based upon the postmark, does work for payment of rent following the issuance of a 72-hour or 144-hour notice of nonpayment under ORS 90.394. To be absolutely certain, however, you should obtain a legal opinion, based upon legal research, from your own attorney.

As to the second part of your question, i.e. what costs and fees you may assess to a resident, who tenders rent after the expiration of a 72-hour or 144-hour notice, if the eviction is actually file, the answer is contained in ORS 90.255:

In any action on a rental agreement or arising under this chapter, reasonable attorney fees at trial and on appeal may be awarded to the prevailing party together with costs and necessary disbursements, notwithstanding any agreement to the contrary. As used in this section, prevailing party means the party in whose favor final judgment is rendered. (Underscored text in italics are mine.)

ORCP 68(A)(1) Provides:

Attorney fees. "Attorney fees" are the reasonable value of legal services related to the prosecution or defense of an action.

ORCP 68(A)(2) Provides:

Costs and disbursements. "Costs and disbursements" are reasonable and necessary expenses incurred in the prosecution or defense of an action, other than for legal services, and include the fees of officers and witnesses; the expense of publication of summonses or notices, and the postage where the same are served by mail; any fee charged by the Department of Transportation for providing address information concerning a party served with summons pursuant to subparagraph D(4)(a)(i) of Rule 7; the compensation of referees; the expense of copying of any public record, book, or document admitted into evidence at trial; recordation of any document where recordation is required to give notice of the creation, modification, or termination of an interest in real property; a reasonable sum paid a person for executing any bond, recognizance, undertaking, stipulation, or other obligation therein; and any other expense specifically allowed by agreement, by these rules, or by any other rule or statute. The court, acting in its sole discretion, may allow as costs reasonable expenses incurred by a party for interpreter services. The expense of taking depositions shall not be allowed, even though the depositions are used at trial, except as otherwise provided by rule or statute. (Underscored text in italics are mine.)

Based upon the above, it is my opinion that the cost of the private company you employ to prepare the eviction complaint, would not normally be recoverable, even if you filed the complaint. Without addressing whether this is the "unlawful practice of law", I will note that if you paid your attorney to perform this service, it would be recoverable as attorney fees, if the complaint was filed. The only exception might be if you had a specific provision in your Rental Agreement that expressly permitted it as a recoverable court cost. I say "might", since the court has a certain amount of discretion in the matter of the amount of costs, fees, and disbursements it will award, and may or may not permit it.

If you file the eviction, but reach a settlement with the resident for payment of your court costs, attorney fees, and disbursements, you may have to enter into a Stipulated Judgment of Restitution, permitting the resident to pay these additional costs over a period of time.

If no eviction is filed, i.e. the resident tenders rent after the running of the 72-hour or 144-hour written notice of nonpayment, but before the filing of a complaint in court, you cannot condition your acceptance upon the simultaneous payment of late charges. And since you have not filed in court, the best you can expect is to recover late charges through the use of a 30-day notice under ORS 90.630(1). Additionally, remember that if the resident is a serial later payor, you may issue a 20-day non-curable notice of termination, under the 3-strikes provisions of ORS 90.630(8).

Answer. Yes and no. ORS 90.510(4) provides that all rental agreements must contain certain provisions, and that unless the law allows otherwise, they may not be unilaterally amended without the consent of both parties. Subsection 90.510(5) sets forth the contents of the rental agreement, and subsection (5)(i) provides that it must describe:

"(a)ny conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria... ." (Emphasis added.)

ORS 90.680(10)(a) provides that if a landlord receives an application for tenancy from a prospective purchaser "

The landlord shall accept or reject the prospective purchaser's application within seven days following the day the landlord receives a complete and accurate written application. An application is not complete until the prospective purchaser pays any required applicant screening charge and provides the landlord with all information and documentation, including any financial data and references, required by the landlord pursuant to ORS 90.510 (5)(i). (Emphasis added.)

ORS 90.680(10)(c provides that if a landlord receives an application for tenancy from a prospective purchaser:

(c) The landlord may not unreasonably reject a prospective purchaser as a tenant. Reasonable cause for rejection includes, but is not limited to, failure of the prospective purchaser to meet the landlord's conditions for approval as provided in ORS 90.510 (5)(i) or failure of the prospective purchaser's references to respond to the landlord's timely request for verification within the time allowed for acceptance or rejection under paragraph (a) of this subsection. (Emphasis added.)

ORS 90.10(40) defines "Screening or admission criteria" to mean:

'_a written statement of any factors a landlord considers in deciding whether to accept or reject an applicant and any qualifications required for acceptance. "Screening or admission criteria" includes, but is not limited to, the rental history, character references, public records, criminal records, credit reports, credit references and incomes or resources of the applicant."

Based upon the above, I believe that since the rental agreement may not be unilaterally modified, you are safer having all of your screening criteria in that document, than putting them elsewhere.

If there are other issues, e.g. with the condition of the home, when you learn that it is going to be sold on-site, you can issue a repair notice under ORS 90.620. That statute is quite useful in these situations. It provides that you can give the resident a 30-day notice of termination based upon repair or deterioration issues. Depending on the degree of repair work necessary, the resident can request additional time.

While it is probably true that the resident may not want to do the work, if and when a purchaser is found, you may give that notice to the purchaser. Putting the home up for sale will not extend the compliance period. Thus, in giving the notice to the prospective purchaser, the issue becomes one of negotiation between seller and buyer. If they reach agreement (which will likely include some price concessions), if the work cannot be completed before the pending transaction closes, you can include completion deadline in the new rental agreement. The new purchaser cannot take possession without first signing the rental agreement and committing to a completion date.

Does all this mean that you cannot or should not develop a resale compliance form for your community? No. But to be forewarned is to be forearmed. In other words, an existing resident could push back if they did not like the provisions, and they might win that argument. The work-around, is that you should make sure your rental agreement contains a good set of screening criteria. MHCO's is very complete. And if the home is in need of repair, you can always issue a 90.632 notice, and secure compliance either from the existing resident, or their prospective purchaser. Since you can make this a condition of acceptance of the prospective purchaser, and it will be written into the new rental agreement, I submit that you will be holding the better hand.

Answer: No, the park should definitely not use a regular manufactured home rental agreement for RVs. By doing so, the park might inadvertently give the RV tenants more rights than they are otherwise entitled to under Oregon's Landlord-Tenant Laws.

Specifically, the MHCO manufactured home rental agreement (and most other, similar manufactured home rental agreements) typically define the rented space as being used for a "manufactured home." This could used against the park in an eviction action. The RV tenant's attorney could very well argue that the RV is a "manufactured home," and therefore not subject to a 30-day, no-cause eviction, as RV tenants typically may be evicted.

Tenant attorneys might also try to argue that the termination provisions in a manufactured home rental agreement similarly do not allow no-cause evictions. All in all, using a regular rental agreement is not a good idea.

Instead, use MHCO Form 80 (Recreational Vehicle Space Rental Agreement). It includes all of the usual landlord protections, plus these specific requirements under Oregon law: (a) That the tenancy may be terminated by the landlord without cause upon 30 or 60 days' written notice for a month-to-month tenancy or upon 10 days' written notice for a week-to-week tenancy; (b) that any accessory building or structure paid for or provided by the tenant belongs to the tenant and is subject to a demand by the landlord that the tenant remove the building or structure upon termination of the tenancy; and, (c) that a state agency or local government may not prohibit the placement or occupancy of an RV, or impose any limit on the length of occupancy, if the RV is located in a manufactured dwelling park, mobile home park or recreational vehicle park, occupied as a residential dwelling and lawfully connected to water and electrical supply systems and a sewage disposal system.

Mark L. Busch, P.C.
Attorney at Law
Cornell West, Suite 200
1500 NW Bethany Blvd.
Beaverton, Oregon 97006

Ph: 503-597-1309
Fax: 503-430-7593
Web: www.marklbusch.com
Email: mark@marklbusch.com

Answer: No, the park should definitely not use a regular manufactured home rental agreement for RVs. By doing so, the park might inadvertently give the RV tenants more rights than they are otherwise entitled to under Oregon's Landlord-Tenant Laws.

Specifically, the MHCO manufactured home rental agreement (and most other, similar manufactured home rental agreements) typically define the rented space as being used for a "manufactured home." This could used against the park in an eviction action. The RV tenant's attorney could very well argue that the RV is a "manufactured home," and therefore not subject to a 30-day, no-cause eviction, as RV tenants typically may be evicted.

Tenant attorneys might also try to argue that the termination provisions in a manufactured home rental agreement similarly do not allow no-cause evictions. All in all, using a regular rental agreement is not a good idea.

Instead, use MHCO Form 80 (Recreational Vehicle Space Rental Agreement). It includes all of the usual landlord protections, plus these specific requirements under Oregon law: (a) That the tenancy may be terminated by the landlord without cause upon 30 or 60 days' written notice for a month-to-month tenancy or upon 10 days' written notice for a week-to-week tenancy; (b) that any accessory building or structure paid for or provided by the tenant belongs to the tenant and is subject to a demand by the landlord that the tenant remove the building or structure upon termination of the tenancy; and, (c) that a state agency or local government may not prohibit the placement or occupancy of an RV, or impose any limit on the length of occupancy, if the RV is located in a manufactured dwelling park, mobile home park or recreational vehicle park, occupied as a residential dwelling and lawfully connected to water and electrical supply systems and a sewage disposal system.

Mark L. Busch, P.C.
Attorney at Law
Cornell West, Suite 200
1500 NW Bethany Blvd.
Beaverton, Oregon 97006

Ph: 503-597-1309
Fax: 503-430-7593
Web: www.marklbusch.com
Email: mark@marklbusch.com

Before any tenant moves into your community the tenant's file should contain the following information:

1. Completed Application
2. Signed Rental Agreement. (Resident is to receive a copy)
3. Signed Rules and Regulations (Resident is to receive a copy)
4. Signed Statement of Policy including Rent History Addendum. (Tenant is to have received a copy of the Statement of Policy prior to signing rental agreement.)
5. Copy of Homeowner's insurance policy with community named as an interested party (for the purpose of being notified of cancellation of insurance. (This is for pets only.)
6. Credit check results
7. Rental check results
8. Criminal check results
9. Application screening fee receipt
10. Pet Agreement - Identify type of pet, name, size. You might consider taking a picture of the pet to include in your file in case you need to identify the pet in the future. Resident must sign the pet agreement. (Resident is to receive a copy)
11. Proof of Age if 55 and older community (photo ID, driver's license)
12. RV Storage Agreement. Identify type of RV (i.e. boat, camper, trailer, etc.) and include license number and description of recreational vehicle. (Resident is to receive a copy)

Any and all notices/correspondence between landlord/manager and resident 

UPDATE: Thanks to John VanLandingham for reminding me that pursuant to the recently enacted Senate Bill 970, ORS 90.303 was amended to provide that when evaluating an applicant for tenancy, the landlord may not consider: (a) A criminal conviction for possession of marijuana; nor (b) Possession of a medical marijuana card, or status as a medical marijuana patient. This new law becomes effective on January 1, 2020. ~ PCQ

Answer.  This applicant seems to believe he makes the rules. Please remind him otherwise. Regardless of the guest policy, you know he has a “lengthy criminal record” so you need to exercise extreme care in permitting him into the park under any circumstances.  

I do have some questions:

• It is unclear to me whether all his criminal history is over 10 years old, or just some of it. If all of it is over 10 years ago, the cuts in his favor.
• You did not describe the nature or severity of the crimes. Are they misdemeanors or felonies? Repeat offenses? 
• Crimes against persons or property? The former warrant more careful attention.
• Lastly, and perhaps most critical to any analysis is whether this person is a member of a protected class. Ex-cons are not, per se’ a protected class. If he is not, there is little he can do from a fair housing standpoint. However, this is not to say you can drop your guard. The main rule-of-thumb to always follow is to be consistent. 

On April 4, 2016, the U.S Department of Housing and Urban Development (“HUD”) issued its “Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions” (hereinafter, the “Memo”). The full text of the 10-page Memo can be found here. Not surprisingly, it follows the June 25, 2015 ruling by the U. S. Supreme Court, in the Texas Dept. of Housing vs. Inclusive Communitiescase, which upheld the much-debated concept of “disparate impact” under the Fair Housing Act, as amended (the Act”).   

At footnote 43 of the Memo, the following appears: 

***see Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology and Pub. Pol’y 483 (2006) (reporting that after six or seven yearswithout reoffending, the risk of new offenses by persons with a prior criminal history begins to approximate the risk of new offenses among persons with no criminal record). (Emphasis added.) 

Does this mean that six or seven years is the maximum look-back that landlords can make when screening someone’s criminal background? I submit that for non-violent crimes, this is not an unreasonable review period. But in cases of crimes to the person, and most significantly, rape and child molestation, I agree a ten-year period is not unreasonable. 

However, the Memo is not to be read to say that anyconviction over seven years may not be taken into consideration when screen potential tenants or temporary occupants. Its purpose is to “…issue guidance, mostly by way of examples and prior case law, in how the use of criminal history during the tenant-screening process, may, and may not, trigger a disparate impact result.”  

 Here are some tenant screening tips I’ve suggested in past articles:  

1. Beware of testers, calling over the phone and asking if you will rent to persons with a criminal background.Be careful about answering these blind calls with a “yes” or “no”. Make sure callers understand that no rental decisions are made in advance of reviewing all relevant background information, including a criminal background report. Encourage the caller to either come to the office and pick up the necessary paperwork, or if they prefer, send it to them at their provided address.  

1. Ultimately, landlords should plan on making adjustments in their rules and application process.   

1. Do not have a rule or policy that treats an arrest, with no conviction, the same as a conviction.If you currently have such a rule, it should not be enforced. 

1. Do not have a blanket guideline providing, for example, that conviction for any crime is an automatic denial. 

1. Be sure that all rules or policies concerning criminal records are uniformly enforced – no exceptions.  However, note No. 7 below. You should avoid a policy saying that all persons with a felony are automatically disqualified. There is a world of difference between an ex-felon who served time for embezzlement ten years ago and has been a contributing member of society ever since vs. an ex-felon who served time for aggravated battery, and has been in and out of jail for similar violent crimes over the past five years. 

1. If possible, evaluate all other rental history, such as prior tenancies, employment, credit, income and affordability, before even going to the results of a criminal background check. If the prospective tenant does not pass one or more of these other criteria, then the rejection can be based on that, rather than a criminal background report, thus avoiding the disparate impact issue entirely. 

1. In evaluating an applicant’s criminal history, do not use a “one size fits all” approach. There are several gradations of severity. Additional issues need to be addressed before deciding to reject a prospective tenant based upon criminal history. For example: 

·     How long ago was the conviction? (A single conviction over 6-7 years old, in most cases should probably not be used as the basis for a denial (excluding registered sex offenders, or those convicted of violent crimes). 

·     What has the person been doing since their release? 

• Has the person been convicted once, or on multiple occasions? 
• What was the nature and severity of the crime?  

1. Note that according to the Memo, a refusal to rent to an applicant who has a conviction for one or more drug crimes involving the manufacture or distribution (notmere possession) of a federally defined controlled substance ispermissible and not subject to a disparate impact claim.In other words, a landlord or manager may legally base the refusal to rent based upon a conviction for manufacture or distribution is nota violation of the Act, based upon disparate impact. Per the Memo: “Section 807(b)(4) of the Fair Housing Act provides that the Act does not prohibit ‘conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’” 

1. ORS 90.303 (Evaluation of Applicant) addresses some of the same issues as in the Memo, but not all of them. And where there is similarity, Oregon law does not go as far as the Memoon the issue of criminal records and disparate impact. Oregon’s statute provides: 

(1) When evaluating an applicant, a landlord may not consider an action to recover possession pursuant to ORS 105.105 to 105.168(Oregon’s eviction statutes – PCQ)if the action: 

       (a) Was dismissed or resulted in a general judgment for the applicant before the applicant submits the application. This paragraph does not apply if the action has not resulted in a dismissal or general judgment at the time the applicant submits the application. 

      (b) Resulted in a general judgment against the applicant that was entered five or more years before the applicant submits the application. 

(2) When evaluating the applicant, a landlord may not consider a previous arrest of the applicant if the arrest did not result in a conviction. This subsection does not apply if the arrest has resulted in charges for criminal behavior as described in subsection (3) of this section that have not been dismissed at the time the applicant submits the application. 

(3) When evaluating the applicant, the landlord may consider criminal conviction and charging history if the conviction or pending charge is for conduct that is: 

     (a) A drug-related crime; 

     (b) A person crime; 

     (c) A sex offense; 

     (d) A crime involving financial fraud, including identity theft and forgery; or 

     (e) Any other crime if the conduct for which the applicant was convicted or charged is of a nature that would adversely affect: 

     (A) Property of the landlord or a tenant; or 

     (B) The health, safety or right to peaceful enjoyment of the premises of residents, the landlord or the landlord’s agent.  

1. Landlords should notassume that compliance with ORS 90.303 means that a denial of tenancy automatically avoids a disparate impact claim.  Landlords and managers should be extra-cautious in this minefield, since where federal law is more restrictive (i.e. burdensome on landlords), it will likely pre-empt state law.  Thus, compliance with state law, but non-compliance with federal law, can still result in a disparate impact claim under the Fair Housing Act, as amended. 

Here are some considerations to keep in mind: 

1. The Memo and ORS 90.303 bothprohibit screening applicants for arrests, regardless of the conduct that led to the arrest; 

1. ORS 90.303 says that an arrest which has not been dismissed but is still pending (i.e. a conviction is still possible) may be considered in tenant screening. The HUD Memo does not address this issue – so we don’t know what the feds would say. Accordingly, it may be prudent to take a more balanced approach in these situations. For example, rather than having a blanket policy that a tenant will automatically be rejected if their charge is still pending, landlords and managers should evaluate the matter based upon (i) When the matter will be resolved, e.g. a week, a month, or a year? (ii) What was the charge? (iii) If convicted, would the applicant automatically be denied? As noted above, the whole issue of criminal background information is an element of the application process that need not be fully vetted, if, regardless of the crime, its severity or recency, the person would fail the application process on other grounds.If so, there is no need to rely upon a landlord’s criminal background policy at all. However, a word of caution here: Be prudent when selecting a basis for denial. Using a weak reason can be viewed as pretextual if the applicant is a member of a protected class. In other words, beware of using a credit basis for denial if it is “iffy” and exclude the criminal background basis. In these cases, landlords and managers should consult legal counsel; it may be best to use both bases.  

1. ORS 90.303 says that a landlord may consider a conviction for certain conduct, generally relating to threats of violence, drugs, sex, or property damage, which would indicate risks to fellow tenants or the landlord. However, the HUD Memo is broader and more subtle (i.e. it demands an evaluation beyond a one-size-fits-all rejection policy). In short, do not rely solely on ORS 90.303, to the exclusion of the more balanced approach demanded by the Memo. 

1. Unlike the HUD Memo, ORS 90.303 does not address how long ago the conviction occurred or require an evaluation of what the applicant had been doing since the conviction. (e. g. evidence of rehabilitation). In the past, earlier Landlord-Tenant Coalitions could not reach agreement on whether to use a five- or seven-year standard in the statute3, nor whether multiple convictions should be dealt with differently than single ones. Accordingly, our statute is silent on this issue.  

Conclusion.  Landlords could be forgiven for feeling they are caught on the horns of a dilemma. If they follow Oregon statutes, it may not be enough. And while it may be sufficient to follow federal law, today that requires a “disparate impact” analysis, which, at best, is a shifting and nuanced set of “guidelines” based upon anecdotal information.  

Perhaps most unsettling is the fact that today, a landlord’s good faith effort to comply with the tenant application process is not enough. Instead, unintentional discrimination, now known under the more benign title, “disparate impact”, has become a basis for Fair Housing claims. Yet unlike statutes, which can provide distinct guidance, disparate impact is more of a conceptthan a law, since it ignores one’s intent, and looks instead to the perceived long-term consequences of certain actions based upon empirical statistics, academic writings, analysis, surveys, demographics and footnotes. Is this something landlords can or should be expected to fully appreciate and understand when evaluating a person for tenancy?  

So, to your two questions:

1. Can you still deny the temporary occupant based on a criminal record from 10 years ago, I would say yes, if the crimes were violent/sexual in nature, were repeated, and during the intervening years, the applicant had not exhibited any stability or rehabilitation. (Note, if the applicant is a member of a protected class, you probably should consult with your lawyer first.)
2. Can he “couch surf”? If your decision is to decline him as a temporary occupant, using the above screening criteria, you certainly don’t want him in the community under any other category. Just say No and let any residents who would aid him in this work-around know that.

Remember this: In the final analysis the decision is easy. Which would you rather defend against: (a) an angry ex-con, or (b) the parents of a child harmed by the ex-con you allowed into the community because he tried to make you bend to his rules?

UPDATE: Thanks to John VanLandingham for reminding me that pursuant to the recently enacted Senate Bill 970, ORS 90.303 was amended to provide that when evaluating an applicant for tenancy, the landlord may not consider: (a) A criminal conviction for possession of marijuana; nor (b) Possession of a medical marijuana card, or status as a medical marijuana patient. This new law becomes effective on January 1, 2020. ~ PCQ

Answer: This isn'tdirectly addressed in the Bill, but since it is the space that is being rented, and the home with tenants have been there three years, I don't view this as a new tenancy. As I see it, rent increases going forward are for a home that has been on the space to the same residents for three-years; bringing in an additional tenant who has been there less than one year is not a factor, since the base rent is for the home on the space, and is not measured on a per tenant basis. But this could be subject to differing interpretations.

By the way, I do not view the first-year freeze on rent increases as particularly harsh, since the landlord can negotiate the first year's rent before allowing the tenant to come in. For example, if current residents are paying $400/month for space rent, but you are planning a rent increase - or have already issued one, for $40 dollars, you would presumably accept the new tenant at $440 - thus making the first-year freeze irrelevant.

On month-to-month tenancies, there is no "cap" on the amount of the initial base rent - it may start at whatever level the landlord and tenant agree upon. However, it cannot be increased thereafter during the first year of the tenancy. For fixed term tenancies, i.e. leases, landlords generally have their rents established through a formula contained in the written agreement. SB 608 only modified ORS 90.600, which governs periodic tenancies, such as month-to-month tenancies.

Obviously, if the elderly or infirm resident, or their family, sell the home before the resident transfers to an assisted care facility, the problem goes away. If not, i.e. the home is vacated and space rent is not paid, the landlord should try to determine the intent of the departing resident, either from the resident themselves, or their family.[1] Are they intending to "abandon" the home?[2] If the resident, or their family, intends to try to resell the home, and make space rental payments in the meantime, then there is probably room for an agreement. But if - as is all too often the case - the intent is to either to simply "walk away" or not make any payments until the home is sold, then the landlord must evaluate his or her alternatives.

When the Resident Leaves Under these circumstances, assuming that the resident or their family did not contact the landlord in advance, and there is no way to find out where they have gone, the only alternative is to issue a 72-hour notice for nonpayment

of space rent. If it is not paid, the FED must be filed, and if the resident does not show up, the court will grant a judgment of restitution. After the lapse of 7 days following issuance of the judgment of restitution, the landlord may commence an abandonment, and proceed to auction as permitted by Oregon law.

It is precisely because the landlord's alternatives are so limited, that it is important to try to determine, in advance, what is going on with the tenant. If they are sick or infirm, this means trying to contact a close relative or friend. Are they planning on leaving? Are they going into an assisted care facility? Are they working with a social worker? If so, what agency is it? Having the answer to these questions make it much easier on the landlord and ultimately the elderly tenant, when the time comes for the tenant to relocate because of advanced age or health.

When the Resident Acquires State Assistance Where the resident obtains state assistance, and that agency acquires lien rights in the home as a result, the landlord still has the right to enforce payment of the rent. Similar to the situation where the resident "walks away" if rent isn'tpaid, an eviction may be filed and abandonment commenced following 7 days after the court's issuance of a judgment of restitution. As discussed below, while the state agency has certain rights during the abandonment process, they are not any different than other lienholders. However, if the space rent is not paid, either by the tenant or the state agency, the landlord has the right to commence the eviction process, by first giving a 72-hour notice of nonpayment.

Dealing with the Estate Most estate attorneys and heirs, do not understand the statutory abandonment process. In a nutshell, the estate has substantially the same rights to resell the home under a storage agreement as a lienholder, except that the resale period lasts for 90 days or close of probate, whichever is longer. Unfortunately, in most cases where the resident has passed away, the attorney, if one has been retained, or the beneficiaries, if not, assume that they do not have to pay space rent until the home is sold. This is patently incorrect. If the estate does not return the signed storage agreement within 60 days following the issuance of the abandonment and storage agreement, the landlord may proceed to auction.

In those cases in which the state agency has a lien (e.g. the Oregon Department of Revenue where the personal property taxes are paid under the senior citizens' deferral program), they must be notified of the abandonment the same as any other lienholder. However, in many instances, the state agency fails to file its lien with the Department of Motor Vehicles ("DMV"), which is the primary source for landlords to determine whether there are any liens filed against the home. Unless the landlord has actual notice of the lien, the failure of the agency to record it with the DMV will likely prevent it from being notified of a pending abandonment.[3]

Conversely, if a landlord is notified that the state agency providing assistance to the resident intends to claim a lien, then he or she should make sure to give them notice, once the resident has left the home (with no intent to return) and the abandonment process has been started. In this manner the state agency will have to decide - like all lienholders - whether to sign the storage agreement and commence making storage fee payments, or (b) give up the right to resell the home on site, to satisfy the lien.

[1] A related problem arises where the elderly tenant leaves, after transferring possession (and sometimes ownership) of the home to a younger relative - without the landlord's consent. Assuming that the landlord has not consented or accepted rent from the unauthorized occupant, this is a violation of ORS 90.400(3)(d) and the landlord has the right to issue a 24-hour notice to the occupant of the home, and, if necessary, terminate the tenancy.

[2] By "abandonment" I mean that the resident has, or will leave, with no intent of returning.

[3] Although this issue has not been addressed in any Oregon appellate court case, it is hard to see how a landlord could be required to notify a state agency, if he or she did not know that the agency claimed a lien on the home. Unless or until ORS 90.675 is amended, it would seem incumbent on any state agency claiming a lien to become familiar with the statute and record their lien with the DMV.