Search

Answer: Landlords should become intimately familiar with ORS 90.680, and then make sure their rules and rental agreements conform to what is allowed. Set forth below is a summary of those portions of the statute that address your questions:

• If the prospective purchaser of a manufactured dwelling or floating home desires to leave the dwelling or home on the rented space and become a tenant, the landlord may require the following:
  • That a tenant give not more than 10 days' notice in writing prior to the sale of the dwelling or home on a rented space;
  • That prior to the sale, the prospective purchaser submit to the landlord a complete and accurate written application for occupancy of the dwelling or home as a tenant after the sale is finalized;
  • That a prospective purchaser may not occupy the dwelling or home until after the prospective purchaser is accepted by the landlord as a tenant;
  • That a tenant give notice to any lienholder, prospective purchaser or person licensed to sell dwellings or homes of the requirements of the resale requirements [Emphasis mine - PCQ];
  • If the sale is not by a lienholder, that the prospective purchaser pay in full all rents, fees, deposits or charges owed by the tenant prior to the landlord's acceptance of the prospective purchaser as a tenant [Emphasis mine];
• If the landlord's rules and/or rental agreement requires prospective purchasers to submit an application for occupancy as a tenant, at the time that the landlord gives the prospective purchaser an application the landlord shall also give the prospective purchaser copies of the statement of policy, the rental agreement and the facility rules and regulations, including any conditions imposed on a subsequent sale[1];
• The following conditions apply 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[2];
  • 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;
• 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;
  • 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;
  • In most cases, the landlord must furnish to the seller and purchaser a written statement of the reasons for any rejection[3];
• The landlord may give the tenant selling the home a notice to repair the home [e.g. for damage or deterioration] under ORS 90.632. The landlord may also give any prospective purchaser a copy of that notice.
  • The landlord may require as a condition of tenancy that a prospective purchaser who desires to leave the dwelling or home on the rented space and become a tenant must comply with the repair notice within the allowed period under ORS 90.632.
  • If the tenancy has been terminated for failure to timely complete the repairs under ORS 90.632, a prospective purchaser does not have a right to leave the dwelling or home on the rented space and become a tenant.

Obviously, the statute was drafted with tenant/purchasers in mind. However, as long as the home remains on the space, the landlord has complete control over the situation. In your case, I suspect the delinquent tenant made no effort to notify the landlord of his planned sale to the dealer. However, that does not prevent him from imposing these requirements on the dealer if he wants to put a tenant in the park.

Going forward, it might be advisable for all landlords who have faced this situation before, to prepare a summary of requirements to give dealers when they purchase homes from tenants already sited in the park. They may want to expressly address this in their rules, so tenants cannot say they didn'tknow. The written summary to dealers should clearly state that if a departing tenant owes monies to the landlord, repayment will be required before occupancy of the home will be permitted by a new resident. [A more difficult question that is not addressed by the statute, ORS 90.680, is whether the landlord may prevent the dealer from removing the home without paying the past due sums. I suspect the answer may be "Yes" a landlord may do so, but it would require my examination of the statutory storage or retaining lien rights, which is beyond the scope of this question. - PCQ]

[1] The terms of the statement of policy, rental agreement and rules and regulations need not be the same as those in the selling tenant's statement, rental agreement and rules and regulations.

[2] The landlord and the prospective purchaser may agree to a longer time period beyond seven day for the landlord to evaluate the prospective purchaser's application or to allow the prospective purchaser to address any failure to meet the landlord's screening or admission criteria. If a tenant has not previously given the landlord the required advance 10 days' notice, the period provided for the landlord to accept or reject a complete and accurate written application is extended to 10 days.

[3] If a rejection is based upon a consumer report (as defined in 15 U.S.C. 1681a) for purposes of the federal Fair Credit Reporting Act, the landlord may not disclose the contents of the report to anyone other than the purchaser. In such cases, the landlord is to disclose to the seller in writing that the rejection is based upon information contained in a consumer report and that the landlord may not disclose the information contained in the report.

Answer A: First, the MHCO Lease cited above addresses this. Not fixing the leaks, which are their responsibility to do, is a violation. Secondly, ORS 90.740(f) requires that tenants “(u)se electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems. The tenant is using the water system in an unreasonable manner when they refuse to fix the leaks.

ORS 90.630 (Termination by Landlord) provides, in relevant part, the following:

 (1) Except as provided in subsection (4) of this section, the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days’ notice in writing before the date designated in the notice for termination if the tenant:

      (a) Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740;

      (b) Violates a rule or rental agreement provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing….

ORS 90.630 goes on to explain that you may issue a 30-day written notice of termination, allowing the tenant to fix the leaks within 30 days and avoid termination. If they fail to do so, you may file for eviction. If they cure, but the problem occurs again within six months following the date of your earlier 30-day notice, you may terminate the tenancy within 20 days, and there is no opportunity to cure. MHCO has the necessary forms.

Be sure you have papered your file to support your contention that these are water leaks for which the tenant is responsible, and then specifically describe the violations (there are two of them, one under the Lease, and the other under the statute)  in the Notice. 

Answer B:  This question is same as the prior one and the answer is the same (although the placement of the requirement may not be in the same location, depending on the date of your lease or rental agreement). Just make sure you have the evidence (e.g. plumber statement) before acting, and that you adequately identify the problem and solution in the Notice.

Answer: There seems to be some confusion on what facts determine giving the 30-day notices and which are appropriate for three strikes. Here is a brief primer:

Three Strikes: Pursuant to ORS 90.630(8), a landlord may terminate a space rental agreement for a manufactured dwelling or floating home if:

• The tenant has not paid the monthly rent prior to the eighth day of the month assuming rent is due on the first day of each month, and,
• A 72-hour notice is issued[1] in at least three of the preceding 12 months; and
• The landlord warns the tenant of the risk of a 30-day notice for termination with no right to correct the cause, upon the occurrence of a third nonpayment of rent termination notice within a 12-month period. This warning must be contained in at least two 72-hour notices that precede the third notice within the 12-month period (or in separate written notices that are given concurrently with, or a reasonable time after, each of the two preceding 72-hour notices); and
• The 30-day notice of termination must state facts sufficient to notify the tenant of the cause for termination of the tenancy which is given to the tenant concurrent with, or after the third or a subsequent nonpayment of rent termination notice.[2]

Take-Aways.

• The MHCO 72-hour Notice (Form No. 42) already contains the warning about a non-curable 30-day notice for three strikes, i.e. issuance of three 72-hour notices within the preceding twelve months. No separate warning needs to be given. All management needs to do is complete the form and identify whether it is the first, second, or third such notice.
• Note: The purpose of the 3-strikes statute is to discourage serial late-paying. The violation is not "cured" by paying the rent late after issuance of a 72-hour notice - in other words, it still counts toward issuance of a three strikes notice.
• The 30-day Notice for a 3-Strikes Violation (Form No. 43A) should be given together with the third 72-hour notice; if it is mailed it can be in the same envelope or another one simultaneously sent. Always get a Certificate of Mailing when mailing the letter. Do not wait in sending out the 30-day notice!
• The 30-day 3-strikes notices is not "cured" by payment of the late rent.
• Since there could potentially be a waiver argument if the landlord attempted to terminate for issuance of more than three 72-hour notices, it is recommended that if the tenant was issued more than three such notices within twelve months, the landlord select just three.
• Caveat: Each 72-hour notice must have been properly prepared. If one of them has been defectively prepared (e.g. wrong date, time, etc.) or incorrectly served (e.g. improper posting and mailing, etc.) it will not count towards the three strikes. For this reason, it is suggested that legal counsel closely review each 72-hour notice that is intended to become the basis of a 3-strikes eviction.

Thirty-Day Notices: Pursuant to ORS 90.630(1) - (7), a landlord may terminate a space rental agreement for a manufactured dwelling or floating home if a tenant:

• Violates a law or ordinance related to the tenant's conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740 (Tenant Obligations);
• Violates a rule or rental agreement provision related to the tenant's conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing;
• Is classified as a level three sex offender under ORS 163A.100 (3); Note that this violation is not curable, and the 30-day notice must so state; or
• Fails to pay a (i) Late charge pursuant to ORS 90.260; (ii) Fee pursuant to ORS 90.302; or (iii) Utility or service charge pursuant to ORS 90.534 or 90.536.
• Note that for violation regarding the physical condition of the home, a 30-day notice does not arise under ORS 90.630; rather ORS 90.632 applies. Do not get the two types of events confused. Use MHCO Form No. 55 is to be used for repair and deterioration issues under ORS 90.632, and Form No. 43 is to be used for all other curable 30 day notices arising under ORS 90.630.
• The 30-day notice must state facts sufficient to notify the tenant of the reasons for termination of the tenancy and state that the tenant may avoid termination by correcting the violation within the 30-day period.
• If substantially the same act or omission that constituted the prior violation recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days' written notice specifying the violation and the date of termination of the tenancy.
• Note that notwithstanding issuance of a 30-day notice, management may issue a notice for nonpayment of rent under ORS 90.394. Caution: If the last day of a 30-day notice of termination is on, say the 15th of the month, the landlord's 72-hour notice issued on the 8th day of that month should only demand rent up through the 15th. If the 72-hour notice demands rent covering the period after the 15th, it could invalidate the 30-day notice since it demands that the tenant pay rent for a period of time beyond the official end of the tenancy. There is also a risk of incorrectly calculating the number of days in the 72-hoour notice. For these reasons, I do not recommend issuance of a 72-hour notice while a 30-day notice is pending. And if the tenant voluntarily pays the rent while the notice is pending, I recommend immediately returning it, saying that the resident must first timely cure the default identified in the 30-day notice (assuming the default is curable).

[1] Or the fifth day of the rental period is a 144-day notice is used.

[2] I do not recommend waiting to issue the 30-day notice. It should be sent or delivered concurrently with the 3rd strike, i.e. the 3rd 72-hour notice.

Answer: First, there is nothing in the Oregon Residential landlord-tenant law directly on point. Nor would I expected there to be, any more than a law prohibiting residents from intentionally defacing community property. It just goes without saying.

Looking for a remedial statute for recourse, however, is not difficult.

Check your community rules to see what they say. While I would not expect there to be a direct prohibition against wasting water, there very well be something that comes close to the point.[1] If there is some provision in your rules that you can point to, then you could use a 30-day notice of termination under ORS 90.630.

However, I'm not sure you want to permit the resident 30 days to cure. Under these circumstances, you might want to resort to the non-curable 24-hour notice statute, ORS 90.396(1)(f), for outrageous conduct. While it is true that landlords and managers should not use the 24-hour notice if a 30-day curable notice would suffice. Accordingly, I would suggest that before resorting to the 24-hour statute, you "paper your file" by giving him a written warning notice, say seven days in advance, telling him what you will do if he does not stop. If he continues to flagrantly waste the community water, then file the 24 hour notice and let the judge decide. I suspect he or she will come down on your side of the issue.

Also, keep in mind that if you are forced to issue the 24-hour notice and go to court, at the first appearance, the court will encourage both parties to resolve the matter. In this situation, if the resident agrees to stop wasting water, then have him enter into a Stipulated Judgment of Restitution (which is prepared by the judge at the time of the first appearance), which would give you the ability to go back to court quickly (without having to file again), to evict should he violate the agreement.

There are other statutes that come into play here, although their violation would only give you a right to issue a 30-day curable notice of termination:

• ORS 90.740(3) (Tenant Obligations) provides that a tenant shall: "Behave, and require persons on the premises with the consent of the tenant to behave, in compliance with the rental agreement and with any laws or ordinances that relate to the tenant's behavior as a tenant."

While this provision requires you to look elsewhere (e.g. the rental agreement, laws, rules and ordinances), I suspect checking with your local water bureau, you will find certain water conservation rules and regulations that prohibit intentional waste of public water.

• ORS 90.740(4)(a) (Tenant obligations) also provides that a tenant shall: "Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;"

Again, this provision is not directly on point, I think we can agree that that intentional waste of water is not a "reasonable" use of the rented space. Moreover, ORS 90.130 (Obligation of good faith) helps out here, since it clarifies that "Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement."

[1] In briefly looking over the MHCO agreement I do not see language directly on point.

Answer: This is a good – and important – question. Here are some points to always remember: 1. A resident who is renting the home is not under the manufactured housing section of Oregon’s residential landlord-tenant law (“ORLTA”) which is contained in ORS Chapter 90. This means that you do not treat non-owner residents the same way you would as if they were renting an apartment or home. Landlord and tenant rights, duties and remedies are different, depending upon whether the person renting the space also owns the home. 2. A landlord’s remedies [e.g. for-cause termination, etc.] against a non-owner resident are found in ORS 90.392, 90.394, 90.396, 90.398, 90.403 and 90.405; they are not found in the manufactured housing section of ORLTA, which commences at ORS 90.505. 3. Similarly, you do not want to use a standard manufactured dwelling space rental agreement for a non-owner resident. However, due to the number of park-owned homes, MHCO has developed a space rental agreement for tenants who do not own the home. You should use it. If you use MHCO’s standard manufactured home space rental agreement for persons owning their home, you will be contractually giving the non-owner resident greater rights than you would otherwise need to do. For example, the “cure period” for violations is much shorter for non-owner tenants – because they only need to vacate with their personal property. They do not need to move a home. If they owned the home, they would have a 30-day right to cure under ORS 90.630. This means that you will have to use a different, non-MHCO form for rules violations by non-owner tenants. 4. However, the eviction process, i.e. the filing and service of an FED Complaint under ORS 105.105, et. seq, is the same. That is, the process of the “first appearance,” trial settings, etc. is exactly the same. 5. Importantly, since the park owns the home, the park is the “landlord.” This means that it must provide inside the home certain safety measures that ORLTA requires of landlords, such as smoke detectors and [if there is a carbon monoxide source] a carbon monoxide detector. Some counties require a carbon monoxide detector in all cases, even if there is no carbon monoxide source, e.g. a gas fireplace. Go to the State Fire Marshall’s site for more information on these important issues.

By Mark L. Busch, P.C., Attorney at Law Question: Can our park use the regular MHCO manufactured home rental agreement for RV tenants who are allowed in certain spaces throughout our manufactured home park? 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

Editors Note: MHCO is very happy to welcome Mark Busch as a presenter at MHCO's next mandatory training seminary in Bend on July 17th

Answer: The short answer is "not always." More specifically, the laws covering RV tenants are sometimes different from those covering mobile home park tenants. As such, your park will need some separate forms specifically for RV tenants, although there are certain forms that work for both types of tenants.
First and foremost, use a rental agreement form designed for RV tenancies. As mentioned in a previous article, MHCO Form 80 is an excellent recreational vehicle space rental agreement.
Beyond the rental agreement, the basic forms every RV landlord should have are tenancy application and move-in forms (i.e., MHCO Form 01 - Rental Application, Form 03 - Criminal Check Authorization, Form 10 - Application Denial). With proper training, these forms are easily filled out and used during the RV tenant application process.

You will also need eviction notice forms. Here are the most common eviction forms:

1. 72-hour rent nonpayment forms - MHCO Form 82 -(these forms can be the same for mobile home and RV tenants).

2. 30-day or 60-day no cause notice forms (these are different from mobile home park forms).

3. 30-day for cause eviction forms - MHCO Form 83 - (these are different from mobile home park forms).

4. 24-hour eviction notice forms (these forms can be the same for mobile home and RV tenants).

Keep in mind that a form is only as good as the knowledge of the person filling it out. If a form is filled out incorrectly, a landlord risks losing an eviction case to a tenant. This means that not only will the tenant be allowed to stay on the RV space, but you would also likely be held responsible for the tenant's attorney fees and court costs. These fees and costs can run several thousand dollars or more. And you have to start over with evicting the RV tenant.

The best way to ensure a legally enforceable form is to have a knowledgeable landlord attorney spend 5 minutes reviewing it before you serve it on the RV tenant. It all goes back to the old adage that "an ounce of prevention is worth a pound of cure." If an attorney reviews your form before you use it, you immediately and significantly reduce the chances that you will lose an eviction case.

After you or your manager become comfortable filling out your forms, it is not as necessary to involve your attorney. Basic forms - if filled out correctly - typically present no problems later. However, it is always wise to have your attorney review eviction notices, particularly for-cause notices. For-cause notices are typically the ones most challenged by tenants and their attorneys.

A final caveat on RV forms is that you should never purchase forms online or elsewhere that are not specifically tailored for Oregon law. Such forms are typically missing provisions that are either required by Oregon law or are beneficial to landlords under Oregon law.

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: Making an accommodation like this without a writing is an invitation to problems. You can easily enter into an addendum to the Rental Agreement saying that "Rent will be paid by the 11thof the month, and late after the 15th"(i.e. 4 days per statute).

Under this scenario, a 72-hour Notice could issue no earlier than the 18th(seven days from first date rent is due, per statute). If the Rental Agreement provides that there will be a fine of $X for a bounced check and a late fee of $X, then you're OK to do so.

As to whether you created a problem for yourself by allowing the late payments, I would say "No" so long as you have it in writing. Without a writing there is too much chance for argument as to when rent is late and when a late fee can issue.

MHCO does not have a form for this, but could. I will check.

Lastly, to your question about insisting on a certified check or money order, I would like to see it in the Rules or Rental Agreement, so it is enforceable. If it is not in your rules, you can still tell the client that henceforth, he or she will have to pay the rent by certified check or money order, but you could not enforce it, if they refused.

The rule can simply say: "In the event a Resident's rent check bounces on more than one occasion within any twelve month period, all further payments for the following 12 months shall be paid by certified check or money order."

But this would have to be an amendment to your current rules, following ORS 90.610.

One level deeper: The agreement resolves claims that the housing authority failed to fulfill a reasonable accommodation request to provide the tenant’s brother with copies of all correspondence sent to the tenant, resulting in the tenant failing to respond to a recertification notice and being evicted.

The tenant also alleged that the housing authority violated Section 504 of Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability by recipients of federal financial assistance. As a result of the housing authority’s failure to provide the tenant’s brother with her recertification notice, the tenant lost her housing.

What you need to know: The Fair Housing Act (FHA) prohibits housing providers from discriminating against people with disabilities, including refusing to make reasonable accommodations in policies or practices when such accommodations may be necessary to provide persons with disabilities an equal opportunity to use or enjoy a dwelling.

In other words, changes in the way things are customarily done that enable a person with disabilities to enjoy housing opportunities is a reasonable accommodation. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, HUD says that treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling.

Takeaway: Remember to carefully consider each reasonable accommodation request you receive. When you get an accommodation request, it’s up to you to evaluate whether the person is entitled to a reasonable accommodation because of a disability and whether the requested accommodation is reasonable and necessary.