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Answer. This sounds to me a problem that transcends the park rules. Based upon your description of these circumstances, you are certainly within your rights to issue a 30-day curable notice under ORS 90.630(1)(a) and (b) for violation of one or more of your park rules (I'd have to read them to say for certain), the rental agreement (same caveat), or ORS 90.740(4)(j) (Tenant Obligations)[1].

You have not mentioned whether the Temporary Occupants are staying there under a written Temporary Occupant Agreement. If so, it is far easier to terminate them, than terminating the tenancy of a tenant who is occupying the space under a signed Rental Agreement.[2]

But the larger problem, from a humanitarian point of view, is what happens after you have all of the offenders removed? The cycle will likely repeat itself somewhere else, and the situation could become even worse for the children. I suggest you have a discussion with the tenants and make it clear that (a) the extra occupants will have to leave, and that (b) some effort should be made to assist the mother and children transition into a stable living environment. Perhaps a little advance research is in order for you, since it sounds as if the children's best interests are not being properly addressed by anyone in the home. See, https://www.oregon.gov/DHS/Offices/Pages/Child-Welfare.aspx

[1] Behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors.

[2] You need "cause" to terminate both, but there is no 30-day cure period for the Temporary Occupant. See, ORS 90.275.

Answer. This sounds to me a problem that transcends the park rules. Based upon your description of these circumstances, you are certainly within your rights to issue a 30-day curable notice under ORS 90.630(1)(a) and (b) for violation of one or more of your park rules (I'd have to read them to say for certain), the rental agreement (same caveat), or ORS 90.740(4)(j) (Tenant Obligations)[1].

You have not mentioned whether the Temporary Occupants are staying there under a written Temporary Occupant Agreement. If so, it is far easier to terminate them, than terminating the tenancy of a tenant who is occupying the space under a signed Rental Agreement.[2]

But the larger problem, from a humanitarian point of view, is what happens after you have all of the offenders removed? The cycle will likely repeat itself somewhere else, and the situation could become even worse for the children. I suggest you have a discussion with the tenants and make it clear that (a) the extra occupants will have to leave, and that (b) some effort should be made to assist the mother and children transition into a stable living environment. Perhaps a little advance research is in order for you, since it sounds as if the children's best interests are not being properly addressed by anyone in the home. See, https://www.oregon.gov/DHS/Offices/Pages/Child-Welfare.aspx

[1] Behave, and require persons on the premises with the consent of the tenant to behave, in a manner that does not disturb the peaceful enjoyment of the premises by neighbors.

[2] You need "cause" to terminate both, but there is no 30-day cure period for the Temporary Occupant. See, ORS 90.275.

Can a tenant request a mediation after I send them a termination of tenancy notice?

Mediation can be requested after a notice terminating tenancy has been sent to a tenant, but only if the request is made to MMCRC or a designated mediator and a written confirmation of that request is delivered to you (the landlord) beforethe landlord files an action for possession under ORS 105.110. If the tenant delivers a notice requesting mediation before a landlord files an eviction action, the landlord may not file such action until after the mediation process concludes. If a landlord delivers a notice requesting mediation before a tenant files an action regarding a dispute, the tenant may not file such action until after the mediation process ends. 

Can I still accept rent during the mediation process?  Yes. Notwithstanding ORS 90.412, acceptance of rent or performance by a landlord after either party requests mediation and during the mediation process does not constitute waiver of the landlord’s right to terminate a tenancy following the mediation. Acceptance of rent or performance after the mediation process ends may constitute waiver. Additionally, all statutes of limitations are suspended during the mediation process. 

What happens after the mediation? If a mediation is successful, the parties should come to an agreement that resolves the dispute. The question is how enforceable is the agreement. Enforceability will depend upon the issues involved, the terms and how the agreement is drafted. I would encourage you to discuss with your legal counsel strategies on how to make the most of a mediation.For example, if an eviction action has already commenced, you may want to attempt to make the agreement a part of the ORS 105.148 mediation/agreement process. Another example is setting up an enforcement mechanism within the agreement itself.  

The CDRC or the designated mediator shall notify MMCRC of the successful or unsuccessful outcome of the mediation. The parties and the CDRC or mediator are not required to give a copy of any mediation agreement to MMCRC.

If a mediation is not successful, the parties may continue on the path they were on before the mediation. 

This sounds expensive, who is paying for it?Mediations will be performed by the existing network of CDRC mediators, funded by the existing annual assessment already paid by tenants ($10, collected with property tax assessments).  If the parties choose a private mediator, then the parties will have to determine how that mediator is paid. Additionally, the current annual fee paid by park landlords ($25 for parks of 20 spaces or fewer, $50 for larger parks) is doubled.

Very interesting (as always), Bill, but what’s this about $100,000 annual grant to the Oregon Law Center?As you may be aware, some states have allocated substantial funding to their state’s Justice Department or to create a team of private attorneys general to assist with enforcement of tenant rights. Similar systems were originally proposed by the tenants during coalition meetings and were strongly opposed by the landlord group. The ultimate compromise was a limited $100,000 per year grant to be given to the Oregon Law Centerto employ oneattorney to provide direct legal services to statewide park and marina residents on matters arising under the Oregon Residential Landlord Tenant Act.

Is mandatory mediation and the $100,000 per year in perpetuity? No. Both elements have a four-year sunset. An advisory committee has been created to monitor both elements, consisting of equal numbers of landlord and tenant representatives to present a report on the status of both elements to the 2021 and 2023 Legislatures to determine whether they should be renewed.

When does all of this go into effect? The effective date of SB 586 is January 1, 2020

Answer. Before addressing your question directly, it is important to understand what state and federal law say about 55+ communities. Besides several qualifying requirements, a legally established 55+ community must 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 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, a community may increase the age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years. Similarly, a community may impose a more restrictive minimum age requirement than 55. In order to maintain this exemption from the Fair Housing laws which prohibit discrimination against families with children, it is important for park owners and managers to make sure that all such age/occupancy requirements are properly reflected in the community's Rules and the Statement of Policy - and be consistently applied.

So, technically, assuming that your community demographic is well above the 80% floor, there is nothing per se' illegal with the situation you describe.[1] Say, for example, the resident was not ill, but wanted her sister and child to live in the home with her, you could - but are not required - to grant permission. Under those circumstances, if the resident subsequently became ill and was hospitalized, thus leaving the sister and her child in the home on a temporary basis, I view that as an acceptable situation, and not a violation of the law. Even though the resident is not "occupying" the home while she is in the hospital, she is the lawful occupant, and would return to that home upon her recovery.

There is, metaphorically speaking, another 80/20 rule: ORS Chapter 90 is, like most laws, enacted to address essentially 80% of the most commonly observed landlord-tenant issues. That leaves the other 20% to be dealt with on an ad hoc basis, i.e. as they arise. Your situation raises issues that while not technically addressed under the law, it is close enough, and one rather simple to justify.

• It is not a violation of the state and federal law;
• It does not endanger the health, safety or welfare of others in the community; and
• Despite some grumbling from a few residents, permitting them to stay on a temporary basis is the right thing to do, even though it may not fall directly under the temporary occupant statute. (ORS 90.275)

However, in order to avoid setting some sort of "precedent" and perhaps to quell a few complaints, you should consider having a written agreement with the sister, saying something to the effect that she and her daughter are permitted to live at the home, with the understanding that she is doing so on a temporary basis and with the knowledge and consent of the hospitalized resident; that she will abide by the community rules; and that the rent will continue to be paid on time.

You should, of course, continue to monitor the situation, making sure the agreement is being honored, and that there are periodic updates on the health of the resident. If it begins to appear that the resident may not be coming back to the space, you will have to address a sale of the home to another qualifying resident.

[1] Your question did not address whether there is a second-person age requirement. But even if there was, and the 5-year old was in violation, my answer would be the same, i.e. this is more of a charitable response to a difficult situation. And since you are the landlord - with the power to enforce violations - you can, under these circumstances, choose not to enforce the technical violation of the second-person age limit.

Answer: The statute you are referring to is 90.302, and it provides the following: • A landlord may charge a tenant a fee for each occurrence of the following: o A late rent payment; o A dishonored check; o Removal or tampering with a properly functioning smoke alarm,smoke detector or carbon monoxide alarm; o The violation of a written pet agreement or of a rule relating to pets in a facility; o The abandonment or relinquishment of a dwelling unit during a fixed term tenancy without cause; • A landlord may charge a tenant a fee for a second noncompliance or for a subsequent noncompliance with written rules or policies that describe the prohibited conduct and the fee for a second noncompliance, and for any third or subsequent noncompliance, that occurs within one year after a written warning notice. o The fee may not exceed $50 for the second noncompliance within one year after the warning notice for the same or a similar noncompliance or o $50 plus five percent of the rent payment for the current rental period for a third or subsequent noncompliance within one year after the warning notice for the same or a similar noncompliance. • The landlord must: o Give the tenant a written warning notice that describes:  A specific noncompliance before charging a fee for a second or subsequent noncompliance for the same or similar conduct; and  The amount of the fee for a second noncompliance, and for any subsequent noncompliance, that occurs within one year after the warning notice. Give a tenant a written notice describing the noncompliance when assessing a fee for a second or subsequent noncompliance that occurs within one year after the warning notice. Give a warning notice for a noncompliance or assess a fee for a second or subsequent noncompliance within 30 days after the act constituting noncompliance. • The landlord may terminate a tenancy for a noncompliance instead of assessing a fee, but may not assess a fee and terminate a tenancy for the same noncompliance. • The landlord may not deduct a fee from a rent payment for the current or a subsequent rental period. • The landlord may charge a tenant a fee for occurrences of noncompliance with written rules or policies as provided above for the following types of noncompliance: o The late payment to futility or service charge that the tenant owes the landlord; o The failure to clean up pet waste from the space; o The failure to clean up garbage,rubbish and other waste from the space; o For parking violations; o For the improper use of vehicles within the premises; o For smoking in a clearly designated nonsmoking area within the community other than the home; 1 o For keeping an unauthorized pet capable of causing damage to persons or property. • The landlord is not be required to account for or return to any fees to the tenant. • Other than for early termination of a fixed term lease (discussed above) a landlord may not charge a tenant any form of liquidated damages, however designated. • Nonpayment of a fee is not grounds for termination of a rental agreement for nonpayment of rent (i.e. under ORS 90.394), but is grounds for a 30-day notice of termination for cause under 90.630 (1). • This law does not apply to: o Attorneyfeesawarded; o Applicant screening charges; o Charges for improvements or other actions that are requested by the tenant and are not required under the rental agreement or by law, including the cost to replace a key lost by a tenant; o Processing fees charged to the landlord by a credit card company and passed through to the tenant for the use of a credit card by the tenant to make a payment when:  The credit card company allows processing fees to be passed through to the credit card holder; and  The landlord allows the tenant to pay in cash or by check; or  A requirement by a landlord in a written rental agreement that a tenant obtain and maintain renter’s liability insurance. • NOTE: The fees must be described in a written rental agreement. o Since ORS90.100(38)defines“rental agreement”to mean“…all agreements,written or oral, and valid rules and regulations, it would seem that including the fines in the rules would suffice. 2

Answer: First, it must be noted that since tenants are not “owners,” and therefore, the caselaw and statutes that might apply to the latter do not necessarily apply to tenants in manufactured housing communities where the Spaces are rented.

Since landlords are the “owners” of the community, so they should maintain good liability insurance coverage because even if maintenance of a non-hazard tree may be the tenant’s responsibility based on the park rules or rental agreement, (a) he or she may not have sufficient assets or insurance to cover the damage caused – especially if it involves personal injury, and (b) even if they do have coverage, there is a good chance the tenant or the insurance carrier, may try to pass the liability on to the landlord either for indemnity or contribution.

It is also important that landlords have good rules in place that are consistently enforced. Setting aside the hazard tree issue, which are mandated by statute, park rules should be clear in addressing each resident’s duties regarding maintenance responsibilities for non-hazard trees, especially in dealing with low hanging limbs over the resident’s home or that cross over onto another resident’s space. This is especially important where limbs are over a home, patio, driveway, and play areas.

Oregon law allows landlords to require that tenants carry liability insurance not exceeding $100,000.[1] The rental agreement may be unilaterally amended to impose the insurance, subject to 30-days’ notice.[2]

Before we address liability, we must first address duties. Is the tree a “hazard tree” – which is generally the landlord’s duty unless assumed by the tenant as discussed below. If it is not a hazard tree, who has responsibility? That depends upon what the rules and rental agreement say. If the issue is not addressed in those documents, it is – in my opinion - almost certain the landlord will be held responsible if any damages occur. ORS 90.740 governing tenant duties, does not deal with maintenance of trees, except for watering and removal of fallen limbs. ORS 90.730, governing landlord responsibilities, does not address maintenance of trees on the tenant’s space. For common areas, the landlord is liable for maintenance of all trees.

This means that if the issue is entirely ignored in the rules or rental agreement, it will fall to the landlord.

Definitions. The hazard tree statute, ORS 90.727, provides the following definitions:

• Maintenance.  “Maintaining a tree” means removing or trimming it for the purpose of eliminating features of the tree that cause it to be hazardous or may cause it to become hazardous in the near future. The term “hazardous” is discussed below.
• Removal. “Removing a tree” includes both felling and removing it and also grinding or removing the stump.

Hazard Trees. ORS 90.100(20) defines them as trees located in a manufactured housing community measuring at least eight inches DBH[3] and “…considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 (Issuance of license) and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future.” (Emphasis added.)

Landlord Duties. The following hazard tree rules apply under the statute:

• Landlord must maintain a tree that is a hazard tree (i.e., that was not planted by the current tenant) on the Space if “…the landlord knows or should know that the tree is a hazard tree.”
• Landlord may maintain a tree on the Space to prevent the tree from becoming a hazard tree. Prefacing the statute with “may” means it is not mandatory. But if the issue is not covered in the rules or rental agreement, guess what? If the tenant does not maintain the tree voluntarily, it could ultimately become a “hazard tree” thereby removing any doubt about who has the duty to maintain.
• Landlords have discretion in deciding whether the appropriate maintenance is removalor trimming of the hazard tree.
•  Landlords are not responsible for (a) maintaining a tree that is not a hazard tree or (b) for maintaining any tree for aesthetic purposes.
• ORS 90.725 is the general access statute for all landlords and tenants. It is lengthy and detailed. But ORS 90.727(4) requires that the reasonable notice be given to inspect a tree and “…except as necessary to avoid an imminent and serious harm to persons or property, a reasonable opportunity for the tenant to maintain the tree. The notice must specify any tree that the landlord intends to remove.”

Tenant Duties.  Except as provided above, the tenant is responsible – at their expense - for maintaining the trees on their Space. (Notwithstanding this provision, I believe it is good practice to include the responsibility in the rules or rental agreement.) Tenants may retain certain qualified arborists[4] to inspect a tree on their Space, and if the arborist determines that the tree is a hazard, the tenant may either (a) require the landlord to maintain the hazard tree, or (b) maintain the tree at the tenant’s expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist’s report.

Whether it is the tenant’s duty or the landlord’s based upon the above rules, maintenance of any tree with a DBH of eight inches or more requires engaging the services of a landscape construction professional with a valid license issued pursuant to ORS 671.560.

Tree Interfering With Removal Home. If a tenant’s home cannot be removed without first removing or trimming a tree on the Space, the owner of the home may remove or trim the tree at the tenant’s expense, after giving reasonable written notice to the landlord.

General Liability Issues. What follows are my opinions only, and not legal advice. In addressing these issues, I am following general real estate laws.

• Who is responsible if a non-hazard tree – or limbs, falls on the resident’s home or injures a resident or guest?
  • Under ORS 90.727(5), it is the tenant’s responsibility. If the tenant has their home insured, it would be submitted to the insurance carrier. Otherwise, it’s absorbed by the tenant. If they have health insurance, the injury should be covered.
• Who is responsible if a non-hazard tree – or limbs, fall on the neighbor’s home or injures the resident or a guest?
  •  Does the tenant on whose space the tree grows, have liability insurance? If a claim is brought by the neighbor against that tenant, the liability carrier will likely cover it.
  • If the neighbor whose home was damaged had property damage insurance, that carrier would pay, and if the tenant was responsible for tree maintenance by virtue of ORS 90.727(5) the carrier might bring a subrogated[5] claim against the tenant if he/she has assets or liability insurance.
  • If the neighbor was injured and had health insurance, the same rules would apply as above.

• Who is responsible if the roots of a non-hazard tree protrude under the resident’s home, or onto the neighbor’s Space and cause that home to become out of level or otherwise damaged?
  • ORS 90.730(3)(g) provides that “…Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy.” (Emphasis added.)
  • This suggests that the root system from the non-hazard tree is going to be the landlord’s problem if safety becomes an issue as the tree remains there.
  • For this reason, landlords should be attentive to the problem, especially upon the change of ownership of the home, i.e., before the offending root system causes more damage.
• What if a non-hazard tree is blown over in a storm or struck by lightning, and cause damages or injuries to tenants or their property?
  • This is well beyond my real estate legal skill set, except to say that “Acts of God” e.g., weather, forest fires, earthquakes, etc. would not normally create liability to the tenant unless the risk was foreseeable and/or the result of an intentional or grossly negligence act of the tenant – e.g., the tenant damaged the tree affecting its stability, but allowed it to remain on the Space. Certainly, the damage or injuries resulting from the non-hazardous tree would be covered by health or property damage insurance, if the affected resident carried it.

Lastly, notwithstanding the ORS 90.727(5) imposes non-hazard tree maintenance responsibility on the tenant, management must be careful to assure that they are safe. The cost of trimming to prevent a tree from becoming a hazard tree could be significant, and beyond the tenant’s financial capacity. For that reason, among others, it is my belief management must be vigilant about the safety of all trees on th

[1] See, ORS 90.222. This statute is quite detailed. It must be reviewed carefully before a landlord attempts to require it of the residents.

[2] Interestingly, the 30-day notice only applies to month-to-month tenants; it is therefore doubtful that a fixed term lease can be unilaterally amended. Landlords using leases for new residents should consider requiring it in the lease from the start.

[3] The width of a standing tree at four and one-half feet above the ground on the uphill side. Don’t tell the Woke Police, but “DBH” stands for “Diameter at breast height.”

[4] Details in ORS 90.727(5).

[5] Subrogation is a concept that permits an insurance company to pay their insured’s claim and then recover the amount paid from the party ultimately liable for the damage or injury.

Answer: First, it must be noted that since tenants are not “owners,” and therefore, the caselaw and statutes that might apply to the latter do not necessarily apply to tenants in manufactured housing communities where the Spaces are rented.

Since landlords are the “owners” of the community, so they should maintain good liability insurance coverage because even if maintenance of a non-hazard tree may be the tenant’s responsibility based on the park rules or rental agreement, (a) he or she may not have sufficient assets or insurance to cover the damage caused – especially if it involves personal injury, and (b) even if they do have coverage, there is a good chance the tenant or the insurance carrier, may try to pass the liability on to the landlord either for indemnity or contribution.

It is also important that landlords have good rules in place that are consistently enforced. Setting aside the hazard tree issue, which are mandated by statute, park rules should be clear in addressing each resident’s duties regarding maintenance responsibilities for non-hazard trees, especially in dealing with low hanging limbs over the resident’s home or that cross over onto another resident’s space. This is especially important where limbs are over a home, patio, driveway, and play areas.

Oregon law allows landlords to require that tenants carry liability insurance not exceeding $100,000.[1] The rental agreement may be unilaterally amended to impose the insurance, subject to 30-days’ notice.[2]

Before we address liability, we must first address duties. Is the tree a “hazard tree” – which is generally the landlord’s duty unless assumed by the tenant as discussed below. If it is not a hazard tree, who has responsibility? That depends upon what the rules and rental agreement say. If the issue is not addressed in those documents, it is – in my opinion - almost certain the landlord will be held responsible if any damages occur. ORS 90.740 governing tenant duties, does not deal with maintenance of trees, except for watering and removal of fallen limbs. ORS 90.730, governing landlord responsibilities, does not address maintenance of trees on the tenant’s space. For common areas, the landlord is liable for maintenance of all trees.

This means that if the issue is entirely ignored in the rules or rental agreement, it will fall to the landlord.

Definitions. The hazard tree statute, ORS 90.727, provides the following definitions:

Maintenance.  “Maintaining a tree” means removing or trimming it for the purpose of eliminating features of the tree that cause it to be hazardous or may cause it to become hazardous in the near future. The term “hazardous” is discussed below.
Removal. “Removing a tree” includes both felling and removing it and also grinding or removing the stump.

Hazard Trees. ORS 90.100(20) defines them as trees located in a manufactured housing community measuring at least eight inches DBH[3] and “…considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 (Issuance of license) and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future.” (Emphasis added.)

Landlord Duties. The following hazard tree rules apply under the statute:

Landlord must maintain a tree that is a hazard tree (i.e., that was not planted by the current tenant) on the Space if “…the landlord knows or should know that the tree is a hazard tree.”
Landlord may maintain a tree on the Space to prevent the tree from becoming a hazard tree. Prefacing the statute with “may” means it is not mandatory. But if the issue is not covered in the rules or rental agreement, guess what? If the tenant does not maintain the tree voluntarily, it could ultimately become a “hazard tree” thereby removing any doubt about who has the duty to maintain.
Landlords have discretion in deciding whether the appropriate maintenance is removal or trimming of the hazard tree.
 Landlords are not responsible for (a) maintaining a tree that is not a hazard tree or (b) for maintaining any tree for aesthetic purposes.
ORS 90.725 is the general access statute for all landlords and tenants. It is lengthy and detailed. But ORS 90.727(4) requires that the reasonable notice be given to inspect a tree and “…except as necessary to avoid an imminent and serious harm to persons or property, a reasonable opportunity for the tenant to maintain the tree. The notice must specify any tree that the landlord intends to remove.”

Tenant Duties.  Except as provided above, the tenant is responsible – at their expense - for maintaining the trees on their Space. (Notwithstanding this provision, I believe it is good practice to include the responsibility in the rules or rental agreement.) Tenants may retain certain qualified arborists[4] to inspect a tree on their Space, and if the arborist determines that the tree is a hazard, the tenant may either (a) require the landlord to maintain the hazard tree, or (b) maintain the tree at the tenant’s expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist’s report.

Whether it is the tenant’s duty or the landlord’s based upon the above rules, maintenance of any tree with a DBH of eight inches or more requires engaging the services of a landscape construction professional with a valid license issued pursuant to ORS 671.560.

Tree Interfering With Removal Home. If a tenant’s home cannot be removed without first removing or trimming a tree on the Space, the owner of the home may remove or trim the tree at the tenant’s expense, after giving reasonable written notice to the landlord.

General Liability Issues. What follows are my opinions only, and not legal advice. In addressing these issues, I am following general real estate laws.

Who is responsible if a non-hazard tree – or limbs, falls on the resident’s home or injures a resident or guest?
Under ORS 90.727(5), it is the tenant’s responsibility. If the tenant has their home insured, it would be submitted to the insurance carrier. Otherwise, it’s absorbed by the tenant. If they have health insurance, the injury should be covered.
Who is responsible if a non-hazard tree – or limbs, fall on the neighbor’s home or injures the resident or a guest?
 Does the tenant on whose space the tree grows, have liability insurance? If a claim is brought by the neighbor against that tenant, the liability carrier will likely cover it.
If the neighbor whose home was damaged had property damage insurance, that carrier would pay, and if the tenant was responsible for tree maintenance by virtue of ORS 90.727(5) the carrier might bring a subrogated[5] claim against the tenant if he/she has assets or liability insurance.
If the neighbor was injured and had health insurance, the same rules would apply as above.
Who is responsible if the roots of a non-hazard tree protrude under the resident’s home, or onto the neighbor’s Space and cause that home to become out of level or otherwise damaged?
ORS 90.730(3)(g) provides that “…Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord’s duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy.” (Emphasis added.)
This suggests that the root system from the non-hazard tree is going to be the landlord’s problem if safety becomes an issue as the tree remains there.
For this reason, landlords should be attentive to the problem, especially upon the change of ownership of the home, i.e., before the offending root system causes more damage.
What if a non-hazard tree is blown over in a storm or struck by lightning, and cause damages or injuries to tenants or their property?
This is well beyond my real estate legal skill set, except to say that “Acts of God” e.g., weather, forest fires, earthquakes, etc. would not normally create liability to the tenant unless the risk was foreseeable and/or the result of an intentional or grossly negligence act of the tenant – e.g., the tenant damaged the tree affecting its stability, but allowed it to remain on the Space. Certainly, the damage or injuries resulting from the non-hazardous tree would be covered by health or property damage insurance, if the affected resident carried it.

Lastly, notwithstanding the ORS 90.727(5) imposes non-hazard tree maintenance responsibility on the tenant, management must be careful to assure that they are safe. The cost of trimming to prevent a tree from becoming a hazard tree could be significant, and beyond the tenant’s financial capacity. For that reason, among others, it is my belief management must be vigilant about the safety of all trees on the residents’ spaces.

[1] See, ORS 90.222. This statute is quite detailed. It must be reviewed carefully before a landlord attempts to require it of the residents.

[2] Interestingly, the 30-day notice only applies to month-to-month tenants; it is therefore doubtful that a fixed term lease can be unilaterally amended. Landlords using leases for new residents should consider requiring it in the lease from the start.

[3] The width of a standing tree at four and one-half feet above the ground on the uphill side. Don’t tell the Woke Police, but “DBH” stands for “Diameter at breast height.”

[4] Details in ORS 90.727(5).

[5] Subrogation is a concept that permits an insurance company to pay their insured’s claim and then recover the amount paid from the party ultimately liable for the damage or injury.

Answer. The Multnomah County Moratorium does not declare a “rent-holiday” or anything close. Rent is still due and payable. The only exception is that if there is a timely request for partial payments, and the tenant has an objectively verifiable proof of loss of cash-flow related to COVID, you and the tenant are encouraged to enter into an agreement for partial payments for a period of time. Keep in mind that the state courts are not hearing FED evictions for nonpayment of rent, so your options are limited. Reaching a repayment program ahead of time is better that not getting any rent money and not being able to do anything about it.

MHCO has issued a recently developed two forms for members to use when entering into a partial rent payment program. See, Nos. 13A (Multnomah County)  and 13B (Rest of Oregon).

Question.Regarding Form 13-A (Mult. Co.), what if the resident decides they cannot pay anything?  Is that acceptable? Is that what I put in the agreement?

Answer.  The Multnomah Count Moratorium does not declare that rent is forgiven, or is not otherwise due on time. It merely imposes a hold on eviction proceedings where the nonpayment results from a verifiable and documented loss of income due to COVID-19. 

In order to qualify, the resident needs to demonstrate a “substantial loss of income”, through documentation or other objectively verifiable means, resulting from the COVID-19 Pandemic. Note, this includes loss of income related to County, State, and Federal restrictions imposed to mitigate the spread of COVID-19.

So what is your resident providing to establish the substantial loss of income? Presumably, if the resident is no longer employed, he/she can no longer pay the rent. If so, documentation or other information must be provided to establish this. If that is not the case, i.e. if there is no job loss, or it’s not related to COVID, or there is not a substantial loss of income, etc. they don’t qualify.

Keep in mind that if both residents are working and one loses their job for COVID-related reasons, this, of itself, does not automatically qualify them for partial rent payments. If the remaining resident is still working and generating income, you will want to explore how much rent can still be paid. Paying nothing should not be an option where the household is still generating some income, and the resident can pay a portion of the rent, but chooses not to.

Remember, whatever is deferred will have to be repaid within 6 months after the Governor’s Declaration of Emergency expires, so if the tenant is just trying to get out of paying anyrent, there is no real advantage to entering into the agreement today if it results in six months of rent abate, only to have to file an eviction the. The bottom line is that before you enter into the partial rent agreement, you should thoroughly vet the resident’s COVID-related issues and ability to pay at least something. However, as noted above, no Oregon courts are hearing nonpayment of rent evictions, so you alternatives are limited. 

Question.  Regarding having to demonstrate they have substantial loss of income due to the virus, can we:

• Ask to see their final pay stub and current bank statement so we can help figure out what they can pay us?  
•  Can we ask for a letter from their employer stating that they were laid off?  How are they supposed to prove they can't pay in full?

Answer.  Good questions. the Declaration of Emergency is not specific, except only to say that the proof has to be “through documentation or other objectively verifiable means.”

Here are the elements of proof as I see them:

• Is it COVID-related?
• Is there a substantialloss of income? 
• Does it prevent the resident from paying some or all of the space rent?

What you decide to accept as “evidence” is between you and the resident. But other than requiring that he/she provide sensitive, confidential, personally identifiable information (e.g. social security number) I submit that pay stubs, account information is OK, so long as the protected information is redacted, i.e. blacked out. An employer statement is probably unnecessary in most cases, as there would likely be some form of written or emailed announcement.

Question. The  Multnomah County Order says near the bottom that for landlords of communities within Multnomah County they should inform their tenants about the Moratorium. How should I do that?

Answer.I believe reliable information is your best approach so residents trust you as a source. MHCO has distributed material on the Multnomah County Moratorium, and developed two forms which are self-explanatory and follow the law. 

You want residents to know what the law is ahead of time. It is important to convey that the law does not “forgive” any deferred rent; there is no “rent holiday”; and any rent abatement must be supported by verifiable documentation or information showing a substantial loss of cash flow. Without such information, a tenant does not technically qualify for partial payments. 

Unless a tenant has lost their entire source of income, e.g. job loss and is unable to qualify for unemployment, most situations would seem to result in a possible wage reduction, rather than a total loss of income.

Question.Does the Moratorium apply to utilities?

Answer. As for utilities, here is the rule: (a) Residents are still required to pay those utilities and other charges and fees if they pay them directly to third-party providers, e.g. electricity, cable, garbage, etc. (b) But utilities and other charges and fees payable to the landlordare defined in Forms 13-A and 13-B as “rent” that may be deferred (but not forgiven). 

Question.  If residents do not get hold of me by the 1^stof the month, are we still under the obligation to enter into these agreements? 

Answer.  Only the Multnomah County form, 13-A requires the request to be made before the first of the month, since that is what the ordinance says. We developed Form 13-B (for areas outside of Multnomah County/City of Portland) and followed generally, Form 13-A. We did so because we believed it was a good approach. However, the Oregon Legislature has not developed a comparable law for areas outside Multnomah County/City of Portland – although we expect one shortly.

Accordingly, there are some differences between the two forms, one of which is that Form 13-B does not expressly require that the request must be made before the first of the month.

Nevertheless, assuming your community is inside the Portland/Multnomah County area, and rent has not yet been paid, say for April, and the resident requests to make partial payments, I suggest that a certain amount of latitude is important during these tough times. In other words, if the resident is a legitimate candidate for partial payments, you should consider having them sign Form 13-A. 

Question. Do we fill out either Form 13A or 13B each month?

Answer.  No. Form 13-A (Portland/Multnomah County) lasts for the duration of the Moratorium because that is what the law says; Form 13B last for the duration of the “Concession Period” which is the amount of time both landlord and resident agree rent shall be abated. 

However, directly above the resident’s signature in both forms, the following provisoappears in bold print:

By signing below, Resident certifies that the documentation or other objectively verifiable information supporting a substantial wage loss is true and correct to the best of his/her knowledge. In the event that through other income or employment, Resident’s wage loss is reduced or eliminated, Landlord will be promptly notified, and this Agreement shall either be terminated or modified accordingly.

Question. I've had my first call regarding nonpayment of rent.  The daughter called me to say her mother had been laid off.  She said the Governor said they have six months to pay rent.  I cautioned her that we needed some proof of wage loss, and if so, the parents would need to enter into an agreement for partial payments.  She said we can't evict them. I said not now, but eventually if rent isn't paid an eviction would occur.  
 

I don't think this conversation went very well.  A script of what we should be asking for or saying would help - even just bullet points so I know I am doing it correctly?

Answer. We cannot develop a script for many reasons, the first of which all circumstances can vary. However, I believe the following information distills exactly what landlords and residents can and cannot do: - but you should not treat tenant requests with a one-size-fits-all approach.
 

• The Multnomah County Moratorium does not declare a “rent-holiday”;
• Rent is still due and payable. 
• Deferred rent is not forgiven;
• The only exception to payment of full rent is a timely request for partial payments, in which case the tenant must establish with reasonable evidence:
  • An objectively verifiable proof of substantial loss of cash-flow;
  • It must be related to COVID;
  • MHCO has recently developed two forms for members to use when entering into a partial rent payment program. See, Nos. 13A (Multnomah County)  and 13B (Rest of Oregon);
  • Deferred rent must be repaid with 6-months after the Moratorium ceases in Form No. 13A (Multnomah County)  and an agreed-upon period of time in No. 13B (Rest of Oregon);
• Oregon courts are not hearing FED evictions for nonpayment of rent for the time being – we don’t know how long that will last;
  • If the resident engages in some activity that endangers the health, safety and welfare of the residents, management, or visitors/guests, you should check with your county court to see if a proceeding would be timely heard if you filed for eviction.
• For utilities: (a) Residents are still required to pay those utilities and other charges and fees if they pay them directly to third-party providers, e.g. electricity, cable, garbage, etc. (b) But utilities and other charges and fees payable to the landlordare defined in Forms 13-A and 13-B as “rent” that may be deferred (but not forgiven). 
• The above rules are fluid, and we do not yet know what the Oregon Legislature might do. Once that occurs, we anticipate having to make adjustments in the current rules upon which the above information is based.