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Answer: Here is a summary of ORS 90.260, the late fee statute. It answers the questions posed above.

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

• The rent payment is not received by the fourth day of the period for which rent is payable; and
• There exists a written rental agreement that specifies:
  • The tenant's obligation to pay a late charge;
  • The type and amount of the late charge; and
  • The date on which rent payments are due, and the date on which late charges become due.

(2) The amount of any late charge may not exceed:

• A reasonable flat amount, charged once per rental period. "Reasonable amount" means the customary amount charged by landlords for that rental market;
• A reasonable amount, charged on a per-day basis, beginning on the fifth day of the rental period for which rent is delinquent. This daily charge may accrue every day thereafter until the rent (not including any late charge), is paid in full, through that rental period only. The per-day charge may not exceed six percent of the amount of the "reasonable lat amount", described above; or
• Five percent of the periodic rent payment amount, charged once for each succeeding five-day period, or portion thereof, for which the rent payment is delinquent, beginning on the fifth day of that rental period and continuing until that rent payment (not including any late charge), is paid in full, through that rental period only.

(3) In periodic tenancies (e.g. month-to-month), a landlord may change the type or amount of late charge by giving 30 days' written notice to the tenant.

(4) A landlord may not deduct a previously imposed late charge from a current or subsequent rental period rent payment in order to make the rent payment short so as to issue a 72-hour notice of nonpayment.

(5) A landlord may charge simple interest on an unpaid late charge at the rate allowed for judgments (9.00%) and accruing from the date the late charge is imposed.

(6) Nonpayment of a late charge alone is not grounds for termination of a rental agreement for nonpayment of rent, but is grounds for termination of a rental agreement for cause by using a curable 30-day written notice of termination. [Note: The landlord may identify the late charge on the 72-hour notice of nonpayment of rent, so long as it makes clear that the tenant may cure the nonpayment notice by paying only the delinquent rent, not including any late charge.]

Answer:  This is an issue that the Oregon Residential Landlord Tenant Act (“ORLTA” or the “Act”) is not fully equipped to address. Nowhere in the Act is there a clear answer. But connecting some dots, I think we can arrive at a logical answer.  

· Technically, the 18-year old is not a tenant under the manufactured housing park (“MHP”) side of the Act, since he does not “own” the home. At best, he is a “tenant” under the non-MHP side of the law – he could be considered a month-to-month tenant, and therefore subject to the 30-day right of termination by the landlord.  Assuming this, what is the landlord to do?  First, do the rules permit subleasing?  If not, he could be compelled to leave. 

· Second, rent should not be accepted from him until this situation is clarified and a solution reached.

· Third, if the landlord is willing to accept the 18-year old under these circumstances (i.e. assuming he goes into title), he could be offered a monthly tenancy, subject to his qualifying under the community rules, etc. which, of course, require the background check, etc.  

· Lastly, again assuming the landlord is willing to accept him, a guarantee by the parents might be in order.  

· Keep in mind that since he was not a signatory to the original rental agreement since he was a minor, the fact that he is the only person remaining at the home, technically makes him an authorized occupant that has not yet been approved by park management. This is your strongest card, and you should use it to fashion the solution that best fits your needs.

All of these things require some legal guidance, but the answer to the above question is that the landlord, by acting carefully, should be able to protect his position and either require the 18-year old to vacate or qualify in all respects as a new resident (assuming he goes into ownership of the home).  In all cases a background check is not only appropriate, but essential.

MHCO Editor's Note:  This summary is extensive with a lot of information.  A PDF copy of the same summary as below is attached above (the attached pdf version may be a more appropriate format) along with five new or revised MHCO forms that will be necessary for your to use for non payment of rent evictions.  These forms are not 'fillable' and can only be found on this web site attached to this article.  As we move through the COVID-19 crisis MHCO will likely be updating and revising these forms - please use the forms on the MHCO web site for the most current.  Thank you for your patience.

By Phillip C. Querin, MHCO Legal Counsel

Background. HB 4401 was signed by the Governor on December 23, 2020. It was the product of the Oregon Legislatures Third Special Session. 

Ostensibly, this was to be an extension of the current eviction moratorium that was scheduled to expire on Jan. 1. The new moratorium will now expire on July 1, 2021. However, if an extension was all the legislators sought to accomplish, they exceeded their own stated expectations. Actually, they had to deal also with HB 4213, which was the product of 2020’s First Special Session. 

In response to Covid-19 related financial hardships, the Oregon government passed HB 4213 in mid-2020. The bill prohibited evictions for nonpayment of rents, charges, and fees and no-cause evictions throughout a defined “Emergency Period.” The Emergency Period originally ran from April 1, 2020 to September 30, 2020. 

HB 4213 further established an additional six-month elective “Grace Period” during which the tenant could arrange to pay back their accrued rent arrearages. The tenant was required to pay back their outstanding rents, charges, and fees at the end of the Emergency Period unlessthey notified their landlord that they intended to use the additional six months.  The Grace Period originally began at the end of the Emergency Period and ran until March 31, 2020. Landlords were prohibited from filing nonpayment and no-cause evictions based on unpaid rent accrued during the Emergency Period. 

All rents, charges, and fees accruing outside of the Emergency Period still must be paid as agreed under the rental or lease agreements. For-cause evictions were always still available to landlords.

On September 28, 2020, in recognition that Covid-19 hardships were still continuing, Governor Brown issued Executive Order 20-56 which extended the Emergency Period and corresponding prohibition on no-cause and nonpayment residential evictions to December 31, 2020. The executive order did notextend the Grace Period – all back rents, charges and fees accrued between April 1, 2020 and December 31, 2020 were still due on or before March 31, 2020.

Unfortunately, what occurs when (a) drafters are rushed, and (b) their work product is not subject to any review or amendment, as was the case with HB 4401, the result is a bill that creates more questions than answers. While it purports to provide funding for landlords who have suffered as a result of the many Executive Orders and makeshift legislation such as HB 4312, the reality is not promising. Why? Because the success of the bill still requires the Oregon Legislature to put some money where its mouthlegislation is – the program must still be funded, and HB 4401 did nothing to address that issue.  

Oregon House Bill 4401.This bill was passed December 21, 2020, and signed by the Governor on December 23, 2020. It accomplished two major objectives[1]:

1) Directing the Oregon Housing and Community Services Department to implement a program for direct aid to landlords reimbursing a percentage of outstanding rents; and 

2) Modifying the Emergency Period and Grace Period created under HB 4213 for tenants who claim financial hardship. 

The Program.  HB 4401 authorizes the Oregon Housing and Community Services Department (“OHCS”) to pay residential landlords 80% of unpaid rents due after April 1, 2020 and up to the date of the application, for certain qualified tenants. 

Landlords,[2]or their designees, must apply to OHCS to qualify for distributions for tenants who: 

1. Have not paid rent, and
2. Have submitted a signed Hardship Declaration Form. (OHCS is directed to expedite implementation of the landlord compensation fund but the exact look and function of the program is unknown as of the writing of this summary.)

OHCS will develop an online application system to handle reimbursement requests. The application and related forms will be available in English, and translated for non-English speakers as well.[3]The program will also have more than one application period to assure broader reach and eligibility. It is unclear at this time how many application periods will be available. Landlords should be eligible to apply more than once, state funds allowing, if unpaid rents and fees continue to accumulate after the first application and distribution. 

Landlord application. It will require, at a minimum:

1. A copy of the tenants’ Hardship Declaration Forms;
2. A description of the unpaid rent for all current tenants;
3. An agreement to forgive the remaining 20% of unpaid rent for  tenants accrued between April 1, 2020 and the date of the application;
4. An agreement that, should the landlord receive from the tenant, or on the tenant’s behalf, any portion of the unpaid rent (forgiven or paid through the distribution) within a certain window specified by OHCS, that they will repay OHCS;;
5. An agreement that the landlord is not seeking reimbursement for rents due from immediate family members;[4]
6. An agreement that while the application for reimbursement is pending, the Landlord will not terminate[5]a tenant without cause or for non-payment;[6]
7. Any other information or requested by OHCS in the application;

In order to reach landlords who are struggling the most (i.e. fewer rentable units or a higher percentage of outstanding rents) OHCS may establish qualifications, priorities, restrictions or limits on distributions, which may include:

1. Limits per tenant, per landlord, or per time period; 
2. The number of units a landlord must own; or 
3. The percentage of total rent unpaid.

OHCS may coordinate with the local housing authority to administer the rules and distribute the reimbursement funds. Either OHCS or the appropriate housing authority will notify tenants of the distribution to the landlord on their behalf and the agreed-upon amount of forgiveness to which they are entitled. OHCS may also conduct outreach to landlords and tenants, including non-English speaking parties.

Eviction Moratorium Extension. The Landlord distribution program provisions are set to automatically repeal on January 2, 2023. 

Forms.

Emergency Period and Grace Period Extensions.  For all renters, the Emergency Period (until December 31, 2020)[7]and Grace Period (through March 31, 2021) as defined in HB 4213 remain unchanged, unless:

1. The landlord fails to provide a Notice of Eviction Protection (see MHCO Form 111 below); and
2. The landlord fails to provide tenant with a Tenant’s Hardship Declaration Form (see  MHCO Form 110 below); together with
   1. AnynoticegivenunderSection3(5)(c),chapter13,OregonLaws2020(firstspecial session) (Enrolled House Bill4213);[8]and
   2. Everyterminationnoticefornonpayment of rentdeliveredbeforeJune30,2021;and

c. Anysummonsforevictionbasedonaterminationnoticefornonpayment  delivered before June 30, 2021;

---OR---

3. Tenant fills out and returns the Hardship Declaration Form asserting financial hardship.

Afteratenantdeliversacopyofthe Hardship Declarationto the Landlord,theEmergencyPeriodandendoftheGracePeriodareextendedtoJune 30,2021. During that time, the landlordmaynot takeorattempttotakeanyactiontointerferewithatenant’spossession.

The Hardship Declaration Form. It may be submitted to the landlord at any time, up to and including the first appearance in an action to recover possession. Delivery of the Hardship Declaration Form may result in dismissal of no-cause or nonpayment eviction proceedings during the Emergency Period and Grace Period.

Landlords may not: 

1. Challenge the accuracy of a tenant’s Hardship Declaration in an eviction proceeding;
2. Require additional information beyond what is required by the Hardship Declaration Form; 
3. Demand more than one copy of the Hardship Declaration per household or tenancy; 
4. Prohibit the tenant from submitting a Hardship Declaration in a language other than English if the tenant is using an approved translated form from the courts; 
5. Prohibit the tenant from submitting the Hardship Declaration to the landlord in any manner, format or means available, including but not limited to, a photograph of the document submitted by email or text message.

Evictions During the Emergency and Grace Periods.  Only the following landlord evictions are permitted during either of these two periods:

1. Evictions for violation of a rental agreement, other than non-payment may continue;
2. Evictions for nonpayment occurring before April 1, 2020 may also continue;
3.  “Landlord-cause” evictions[9]are allowed after the first year of occupancy. Landlord cause evictions include:

1. Demolition or converting dwelling unit to non-residential use;
2. Intent to make repairs/renovations to the dwelling unit within a reasonable time, and the building is unsafe/unfit or occupancy or will be unsafe/unfit for occupancy during the repair/renovation period; 
3. Landlord intends for immediate family member to occupy dwelling unit as a primary residence and no comparable units at the same location are available; or 
4. Landlord has accepted an offer to purchase the dwelling unit; purchaser will use unit as a primary residence.[10]

Important Changes to Landlord Nonpayment of Rent Notices.  The 72-hour nonpayment of rent notice under ORS 90.394 is now a 10-day notice ending at 11:59 pm. The 144-hour nonpayment of rent notice is now a 13-day notice ending at 11:59 pm. These changes expire July 1, 2021.[11]

Tenant Relief for Landlord Violations.  Any violation of the above rules may result in the tenant being granted an injunction to recover possession or address any other violations, and the award of the equivalent of three-months rent on top of any actual damages. Landlord’s violation of the above rules will also give the tenant a defense to an eviction. In addition, tenant will be entitled to prevailing party fees, attorney fees or costs and disbursements unlessthe landlord can demonstrate:

1. That they delivered the required Notice of Eviction Protection and Hardship Declaration Form;
2. That they did not know or have reason to know at the time they filed the action that the Hardship Declaration Form had been completed and returned; and
3. That they promptly dismissed the action upon learning of the existence of the completed forms.

Summons and Complaint Forms: Note: Changes resulting from the Eviction Moratorium laws, and HB 4401’s changes to Landlord-Tenant statutory language are reflected in the  Summons and Complaint forms for residential evictions.[12]Summons and Complaint revert to the standard language on July 1, 2021.

Expiration. Under the terms of HB 4401 the provisions related to the eviction moratorium will automatically repeal on July 1, 2021.

Miscellaneous Provisions and Changes to HB 4213. 

1. A landlord may apply a last month’s rent or security deposit to the Nonpayment Balance if a tenancy terminates prior to the end of the relevant Grace Period;
2. Tenants with a Nonpayment of Rent Balance who are still within their Grace Period are not considered to be in default;
3. A landlord may accept partial payment of rents, charges and fees during the Grace Period. It does not constitute a waiver of the landlord’s right to terminate a tenancy for cause; nor to terminate a tenancy for nonpayment after the expiration of the relevant Grace Period;
4. Amendments to HB 4213 expire on September 1, 2021;
5. For all  Nonpayment evictions, the statute of limitations is tolled and does not begin to run against the Nonpayment claim until July 1, 2021. 

Unanswered questions.  In no particular order, here are some questions about HB 4401 that are sure to arise:

• What happens if landlord sends the Hardship Declaration to a tenant, who does not respond?
• Since landlords need the tenant’s Hardship Declaration to complete their application for 80% of their unpaid rent, is the landlord stymied?
• While the landlord will be able to file for eviction after the Grace Period ends under the old law (March 31, 2021), HB 4401 is clear that the tenant can submit the Hardship Declaration as late as the first appearance at the FED, and bring the proceeding to a halt.
• So it’s a bit of a guessing game what tenants will do; ignore the landlord’s Notice of Eviction Protection until an FED is filed, or cooperate with the landlord and sign and return the Declaration? What incentive do tenants have to cooperate, if they can wait until the last minute to submit the Hardship Declaration?  
• In any event, no action can be taken against the tenant who does not cooperate until after March 31, 2021 at the earliest. 
• Since the Legislature has no landlord reimbursement program in place yet, one has to wonder when, and if, it will be of any help now.
• There is no question that the landlord funding will eventually be exhausted, and some will be left out. 
• So, the take-away right now is that landlords should immediatelyreach out to their tenants in arrears, get their Hardship Declarations signed, so the application for reimbursement can be processed as soon as possible. 80% of unpaid rent is better than nothing - which is what could occur if the application is delayed. 

Ø Tenants do benefit by their cooperation, since when the moratorium is extended, they are not at risk of any eviction action until after July 1, 2021.  This is the message landlords need to get out to their tenants.

• Otherwise, a landlord may bring an evictionfornonpaymentofrent,chargesandfeesaccruedfrom April1,2020,toDecember31,2020 immediately after March31,2021. Perhaps this also should be part of the landlord’s message.

[1]The bill also made a few additional changes to Oregon Landlord-Tenant statutes which will be addressed below

[2]“Landlord,” for the purposes HB 4401, includes a manufactured dwelling park nonprofit cooperative.

[3]The bill does not specify which non-English languages OHCS must provide, but specifies later that the Oregon Judicial Department provide translated forms (including the Hardship Declaration Form) in Spanish, Korean, Russian, Vietnamese, and Chinese.

[4]Landlord may not seek reimbursement for any tenants that are immediate family members. For the purposes of this law “immediate family” means: a) an adult person related to the landlord by blood, adoption, marriage or domestic partnership; b)an unmarried parent of a joint child; c) a child, grandchild, foster child, ward or guardian of the landlord; or d) child, grandchild, foster child, ward or guardian of any person listed in (a) or (b). (“immediate family” definition from ORS 90.427)

[5]“Termination notice without cause” means a notice delivered by a landlord under ORS 90.427 (3)(b), (4)(b) or (c), (5)(a) to (c), or (8)(a)(B) or (b)(B) (HB 4213)

[6]“Nonpayment” means the nonpayment of a payment that becomes due during the Emergency Period to a landlord, including a payment of rent, late charges, utility or service charges or any other charge or fee as described in the rental agreement or ORS 90.140, 90.302, 90.315, 90.392, 90.394, 90.560, or 90.630. (HB 4213)

[7]Emergency Period Extended to December 31, 2020 by Executive Order 20-56; confirmed in HB 4401 Section 8 (Amendment to Section 3, Chapter 13, Oregon Laws 2020 (first special session )(Enrolled House Bill 4213))

[8]Under the original version of HB 4213, there is no Section3(5)(c). To find the required contents of the voluntary notice referred to in 2) a., one must look to the new HB 4401 Section 8 and follow the amended language. 

[9]See, ORS 90.427(5)(a)-(d).

[10]Note: This does not include listing or marketing the home for sale. Seller/landlord would have to have a pre-arranged buyer who was willing to buy without inspections, etc., or a tenant who was willing to permit the same with 24-hour notice. Of course, seller/landlord could always make financial arrangements with tenant for concessions.

[11]Amendments to 90.394 (2)(a) and (b). These changes from hour-notices to day-notices affect several other statutes that refer to 90.394. Changes revert to original language on July 1, 2021.

[12]For summons language: see ORS 105.113 (as amended by HB 4401 Section 13); for complaint form: ORS 105.124 (as amended by HB 4401 Section 15)

Answer: Here is a summary of ORS 90.260, the late fee statute. It answers the questions posed above.

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

• The rent payment is not received by the fourth day of the period for which rent is payable; and
• There exists a written rental agreement that specifies:
  • The tenant's obligation to pay a late charge;
  • The type and amount of the late charge; and
  • The date on which rent payments are due, and the date on which late charges become due.

(2) The amount of any late charge may not exceed:

• A reasonable flat amount, charged once per rental period. "Reasonable amount" means the customary amount charged by landlords for that rental market;
• A reasonable amount, charged on a per-day basis, beginning on the fifth day of the rental period for which rent is delinquent. This daily charge may accrue every day thereafter until the rent (not including any late charge), is paid in full, through that rental period only. The per-day charge may not exceed six percent of the amount of the "reasonable lat amount", described above; or
• Five percent of the periodic rent payment amount, charged once for each succeeding five-day period, or portion thereof, for which the rent payment is delinquent, beginning on the fifth day of that rental period and continuing until that rent payment (not including any late charge), is paid in full, through that rental period only.

(3) In periodic tenancies (e.g. month-to-month), a landlord may change the type or amount of late charge by giving 30 days' written notice to the tenant.

(4) A landlord may not deduct a previously imposed late charge from a current or subsequent rental period rent payment in order to make the rent payment short so as to issue a 72-hour notice of nonpayment.

(5) A landlord may charge simple interest on an unpaid late charge at the rate allowed for judgments (9.00%) and accruing from the date the late charge is imposed.

(6) Nonpayment of a late charge alone is not grounds for termination of a rental agreement for nonpayment of rent, but is grounds for termination of a rental agreement for cause by using a curable 30-day written notice of termination. [Note: The landlord may identify the late charge on the 72-hour notice of nonpayment of rent, so long as it makes clear that the tenant may cure the nonpayment notice by paying only the delinquent rent, not including any late charge.]

Answer: Here is a summary of ORS 90.260, the late fee statute. It answers the questions posed above.

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

• The rent payment is not received by the fourth day of the period for which rent is payable; and
• There exists a written rental agreement that specifies:
  • The tenant's obligation to pay a late charge;
  • The type and amount of the late charge; and
  • The date on which rent payments are due, and the date on which late charges become due.

(2) The amount of any late charge may not exceed:

• A reasonable flat amount, charged once per rental period. "Reasonable amount" means the customary amount charged by landlords for that rental market;
• A reasonable amount, charged on a per-day basis, beginning on the fifth day of the rental period for which rent is delinquent. This daily charge may accrue every day thereafter until the rent (not including any late charge), is paid in full, through that rental period only. The per-day charge may not exceed six percent of the amount of the "reasonable lat amount", described above; or
• Five percent of the periodic rent payment amount, charged once for each succeeding five-day period, or portion thereof, for which the rent payment is delinquent, beginning on the fifth day of that rental period and continuing until that rent payment (not including any late charge), is paid in full, through that rental period only.

(3) In periodic tenancies (e.g. month-to-month), a landlord may change the type or amount of late charge by giving 30 days' written notice to the tenant.

(4) A landlord may not deduct a previously imposed late charge from a current or subsequent rental period rent payment in order to make the rent payment short so as to issue a 72-hour notice of nonpayment.

(5) A landlord may charge simple interest on an unpaid late charge at the rate allowed for judgments (9.00%) and accruing from the date the late charge is imposed.

(6) Nonpayment of a late charge alone is not grounds for termination of a rental agreement for nonpayment of rent, but is grounds for termination of a rental agreement for cause by using a curable 30-day written notice of termination. [Note: The landlord may identify the late charge on the 72-hour notice of nonpayment of rent, so long as it makes clear that the tenant may cure the nonpayment notice by paying only the delinquent rent, not including any late charge.]

Answer: This fact patter should be a cautionary tale for all park owners and managers about the risk of letting too much time elapse between the violation and legal action. In order to fully answer the question, I need to assume certain facts. First, I assume that the rules clearly do not permit one to occupy a home without management approval. Secondly, I assume that some form of permitted subleasing is OK, so long as the subtenant is approved by management. Third, I assume that someone - presumably the father - has been paying the rent.

If rent has been accepted with knowledge of this violation, it would be deemed to have been waived after the second acceptance of rent - regardless of who paid it. Clearly, if the rules prohibit this, as does the rental agreement and law, action should have been taken the moment she refused to cooperate.

The best solution may be for the father to proceed with the eviction, since he is a "landlord" under the non-manufactured housing side of the Landlord-Tenant law. Clearly, he can work it out with her and/or the court, better than management working with the recalcitrant occupant, who has already established her unwillingness to cooperate. Besides, why should the park absorb this expense, when it is really between the father as a "landlord" and his daughter as the "tenant." (I don't know why the judge sent them home, but suspect it was to try to resolve it as a family matter rather than a court matter.)

As for whether to accept the rent, it's already pretty late to be worried about "waiver" since that has long since been confirmed to have occurred. Nevertheless, I would NOT accept the rent until this matter is resolved.

The problem with park management doing the eviction based upon an "unauthorized occupant," violation, is that it's too late to enforce, in my opinion. However, your question about a "No-cause" eviction suggests that you believe this might be a viable alternative - i.e. the legal basis for eviction arises under the non-manufactured housing side of the statutes. I don't think so. First, because the manufactured housing side of the law still applies vis a vis the father, and regardless, rent has been accepted, making the waiver argument a real possibility.

Answer: Here is a summary of ORS 90.260, the late fee statute. It answers the questions posed above.

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

• The rent payment is not received by the fourth day of the period for which rent is payable; and
• There exists a written rental agreement that specifies:
  • The tenant's obligation to pay a late charge;
  • The type and amount of the late charge; and
  • The date on which rent payments are due, and the date on which late charges become due.

(2) The amount of any late charge may not exceed:

• A reasonable flat amount, charged once per rental period. "Reasonable amount" means the customary amount charged by landlords for that rental market;
• A reasonable amount, charged on a per-day basis, beginning on the fifth day of the rental period for which rent is delinquent. This daily charge may accrue every day thereafter until the rent (not including any late charge), is paid in full, through that rental period only. The per-day charge may not exceed six percent of the amount of the "reasonable lat amount", described above; or
• Five percent of the periodic rent payment amount, charged once for each succeeding five-day period, or portion thereof, for which the rent payment is delinquent, beginning on the fifth day of that rental period and continuing until that rent payment (not including any late charge), is paid in full, through that rental period only.

(3) In periodic tenancies (e.g. month-to-month), a landlord may change the type or amount of late charge by giving 30 days' written notice to the tenant.

(4) A landlord may not deduct a previously imposed late charge from a current or subsequent rental period rent payment in order to make the rent payment short so as to issue a 72-hour notice of nonpayment.

(5) A landlord may charge simple interest on an unpaid late charge at the rate allowed for judgments (9.00%) and accruing from the date the late charge is imposed.

(6) Nonpayment of a late charge alone is not grounds for termination of a rental agreement for nonpayment of rent, but is grounds for termination of a rental agreement for cause by using a curable 30-day written notice of termination. [Note: The landlord may identify the late charge on the 72-hour notice of nonpayment of rent, so long as it makes clear that the tenant may cure the nonpayment notice by paying only the delinquent rent, not including any late charge.]

Answer. ORS 90.545(Fixed Term Tenancies) provides that upon reaching the end of the term, the lease becomes a month-to-month tenancy on the same conditions as the lease. The only exception to this is for the landlord to submit a proposed new rental agreement to the tenant at least 60 days prior to the ending date of the term. Any provisions that are new, i.e. not in the prior lease, are to be summarized in a written statement; the same applies if the landlord is submitted new community rules.

Note that the new lease terms or new rules must “(f)airly implement a statute or ordinance adopted after the creation of the existing agreement; or Are the same as those offered to new or prospective tenants in the community. 

Further, the new lease terms or rules cannot relate to the “…age, size, style, construction material or year of construction of the manufactured dwelling” *** and cannot “…require an alteration of the manufactured dwelling *** or new construction of an accessory building or structure.

The tenant must accept or reject the proposed new lease at least 30 days prior to the ending of the term by giving written notice to the landlord.

Under the recently enacted SB 608, there is a “3-stikes” rule that applies as follows. At the end of the lease it does notautomatically become a month-to-month tenancyif:

• Landlord gives the tenant notice in writing not less than 90 days prior to the ending dateor
• 90 days prior to the date designated in the notice for the termination of the tenancy, whichever is later,and: 
  • The tenant has committed three or more (3+) violations of the lease within the preceding 12-month period and; 
  • The landlord has given the tenant a written warning notice at the time of each violation:
    • Specifying theviolation;
    • Stating that landlord may choose to terminate the tenancy at the end of the fixed term if there are three violations within a 12-month period preceding the end of the fixed term;and
    • Stating that correcting the third or subsequent violationis nota defense to termination under this subsection; and
• The 90-day notice of termination due to violations muststate:
  • That the rental agreement will terminate upon the specified ending date for the fixed term or upon a designated datenot less than 90 days after delivery of the notice, whichever is later;
• Thereasonfortheterminationandsupportingfacts;and
• Is delivered to the tenant concurrent with  or  after the  third or subsequent written warningnotice.

So, the bottom line is that under ORS 90.545, a landlord may not non-renew a tenant at the end of a lease term. You may only offer a new lease as discussed above, or follow the “3-strikes” protocol under SB 608.

Of course, you may always terminate the lease at any time for cause, pursuant to: ORS 86.782(6)(c) (foreclosure trustee sale),90.380(5) (dwelling posted asunsafe by gov’t),90.392 (termination for cause),90.394 (termination forfailure to pay rent),90.396 (termination on 24-hour notice),90.398(termination drugs, alcohol),90.405 (termination, unpermitted pet),90.440(termination in group recovery facility)or90.445 (termination for criminalact).  

Answer. First, let me ask why we're having this discussion today, rather than before you began the conversion in 2011? This is always a risky proposition, since if you converted without following the proper protocols, there could be potential liability. (On the other hand, one might argue that even if it was done improperly, there is no damage, since the residents actually saved money in the process!)

To rephrase your question, let me ask it this way: Is it permissible to pass sewer charges directly to residents from (a) the base rent method (i.e. where it's included in base rent), to (b) a pro-rata method (i.e. where the monthly sewer bill is prorated to each resident based upon the number of occupied spaces in the community)?

The short answer today is "No." Since the statute, ORS 90.532, is complicated, I will try to paraphrase the prohibition as follows: For rental agreements entered into on or after January 1, 2010, a landlord and tenant may not amend a rental agreement to convert water or sewer utility and service billing from a method described in subsection (1)(b)(C)(i) (the base rent method) to a method described in subsection (1)(b)(C)(ii) (the prorate allocation method).

If your residents are on month-to-month rentals, they "renew" every month. Thus, every resident who was in the community before January 1, 2010 and is still there today, has a rental agreement that was entered into after January 1, 2010.

As for what to do now, I would recommend that you discuss the situation with your attorney, and proceed upon his or her recommendation. The first order of business is to make absolutely sure that your prorata method worked to your residents' financial benefit. Secondly, if financially feasible, institute a submetering system, according to the conversion laws. As for your new residents, here is a paraphrase of what the law says:

A landlord may not use a separately charged pro rata apportionment billing method for sewer service, if sewer service is measured by consumption of water and the rental agreement for the dwelling unit was entered into on or after January 1, 2010, unless the landlord was using a separately charged pro rata apportionment billing method for all tenants in the facility immediately before January 1, 2010. If the sewer service is not based upon consumption of water, you may prorate.

For new residents, you do not want to put them on a base rent method with the idea that you can later convert to a pass-through method using a prorata allocation. Oregon law does not permit that method of pass-through conversions today, unless the prorate allocation method existed in the entire community before January 1, 2010. Good luck!