Search

The renting of spaces by manufactured homes in a manufactured home community is governed by the Oregon Residential Landlord and Tenant Act in Chapter 90 of the Oregon Revised Statutes. The Act requires that a written rental Agreement, Statement of Policy and Rules and Regulations be provided to each tenant renting a space in a manufactured housing community. This agreement, which includes or incorporates the community rules and regulations, becomes the contract that governs the relationship between the landlord and the tenant. Much of what you may or may not be able to do in your community will be addressed in the rental agreement.

Although many residents in your community may have rental agreements that are 5 or 10 years old, residents moving in to your community must be given a current rental agreement that conforms with the most recent amendments of Residential Landlord and Tenant Act and Federal Fair Housing Act. MHCO form '5A', "Manufactured Dwelling Space Rental Agreement/Dispute Resolution Addendum" (for month to month tenancies) and MHCO form '5B', "Manufactured Dwelling Space Lease Agreement/Dispute Resolution Addendum" are available through MHCO or you may have a rental agreement drafted by your attorney.

The Oregon Legislature occasionally adopts revisions to the Landlord and Tenant Act. Landlords and managers should make sure that they are utilizing the most current Rental Agreement. Rental Agreements generally may not be changed after execution, with the exception of mutual agreement of the parties; rent increases; and statutory changes (requirements of revised laws will apply even though not stated in the pre-existing agreement). ORS 90.510(4).

The MHCO Rental Agreement is designed to meet the current requirements of Oregon State Law. The Rental Agreement, which is intended for use in all classifications of parks, can be changed or altered to suit individual situations. In either event, you should consult with your attorney in order to insure that the agreement you choose meets all the legal requirements. It is important to remember that the tenant cannot be required to waive any rights that are granted to the tenant/resident by Oregon State Law.

The Rental Agreement should be completed and signed by both the landlord and the tenant/resident PRIOR to the home being moved into the community or PRIOR to the tenant/resident occupying a home already sited in the community. 

Answer.   ORS 90.100(38) defines the “Rental agreement” as: “…all agreements, written or oral, and valid rules and regulations adopted under ORS 90.262 or 90.510 (6) embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises. “Rental agreement” includes a lease. A rental agreement shall be either a week-to-week tenancy, month-to-month tenancy or fixed term tenancy. (Emphasis added.)

So technically, “rules” are really a part of the rental agreement. Of the many definitions of terms in ORS 90.100, there is no separate definition of “rules”.  However, they are given different treatment throughout the Oregon Residential Landlord Tenant Agreement.

For example, ORS 90.262 (Use and occupancy rules and regulations; adoption; enforceability; restrictions) explains the intent and purpose behind rules and regulations. It provides:

90.262 (1) A landlord, from time to time, may adopt a rule or regulation, however described, concerning the tenant’s use and occupancy of the premises. It is enforceable against the tenant only if:

      (a) Its purpose is to promote the convenience, safety or welfare of the tenants in the premises, preserve the landlord’s property from abusive use, or make a fair distribution of services and facilities held out for the tenants generally;

      (b) It is reasonably related to the purpose for which it is adopted;

      (c) It applies to all tenants in the premises in a fair manner;

      (d) It is sufficiently explicit in its prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant must or must not do to comply;

      (e) It is not for the purpose of evading the obligations of the landlord; and

      (f) The tenant has written notice of it at the time the tenant enters into the rental agreement, or when it is adopted.

      (2) If a rule or regulation adopted after the tenant enters into the rental agreement works a substantial modification of the bargain, it is not valid unless the tenant consents to it in writing.

      (3) If adopted, an occupancy guideline for a dwelling unit shall not be more restrictive than two people per bedroom and shall be reasonable. Reasonableness shall be determined on a case-by-case basis. Factors to be considered in determining reasonableness include, but are not limited to:

      (a) The size of the bedrooms;

      (b) The overall size of the dwelling unit; and

      (c) Any discriminatory impact on those identified in ORS 659A.421.

      (4) As used in this section:

      (a) “Bedroom” means a habitable room that:

      (A) Is intended to be used primarily for sleeping purposes;

      (B) Contains at least 70 square feet; and

      (C) Is configured so as to take the need for a fire exit into account.

      (b) “Habitable room” means a space in a structure for living, sleeping, eating or cooking. Bathrooms, toilet compartments, closets, halls, storage or utility space and similar areas are not included. [Formerly 90.330]

The above element of lawful rules bear re-reading, since occasionally, I have seen landlord enforcement actions against tenants attacked for failure to comply with ORS 90.262, especially the portion of the statute that provides rules must be “…reasonably related to the purpose for which it is adopted.”

ORS 90.302(3)(a) (Fees allowed for certain landlord expenses; accounting not required; fees for noncompliance with written rules; tenant remedies) provides that

A landlord may charge a tenant a fee under this subsection 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 described in subparagraph (A) of this paragraph. Except as provided in paragraph (b)(H) [unauthorized pet] of this subsection, 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 $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. 

ORS 90.510(2) (Statement of Policy) requires that both the rental agreement and the rules “…shall be attached as an exhibit to the statement of policy.”

Subsection (5) of ORS 90.510 (Statement of Policy) has similar, but not exactly the same language as quoted in ORS 90.262 above:

  (6) Every landlord who rents a space for a manufactured dwelling or floating home shall provide rules and regulations concerning the tenant’s use and occupancy of the premises. A violation of the rules and regulations may be cause for termination of a rental agreement. However, this subsection does not create a presumption that all rules and regulations are identical for all tenants at all times. A rule or regulation shall be enforceable against the tenant only if:

      (a) The rule or regulation:

      (A) Promotes the convenience, safety or welfare of the tenants;

      (B) Preserves the landlord’s property from abusive use; or

      (C) Makes a fair distribution of services and facilities held out for the general use of the tenants.

      (b) The rule or regulation:

      (A) Is reasonably related to the purpose for which it is adopted and is reasonably applied;

      (B) Is sufficiently explicit in its prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant shall do or may not do to comply; and

      (C) Is not for the purpose of evading the obligations of the landlord.

      (7)(a) A landlord who rents a space for a manufactured dwelling or floating home may adopt a rule or regulation regarding occupancy guidelines. If adopted, an occupancy guideline in a facility must be based on reasonable factors and not be more restrictive than limiting occupancy to two people per bedroom.

      (b) As used in this subsection:

      (A) Reasonable factors may include but are not limited to:

      (i) The size of the dwelling.

      (ii) The size of the rented space.

      (iii) Any discriminatory impact for reasons identified in ORS 659A.421.

      (iv) Limitations placed on utility services governed by a permit for water or sewage disposal.

      (B) “Bedroom” means a room that is intended to be used primarily for sleeping purposes and does not include bathrooms, toilet compartments, closets, halls, storage or utility space and similar areas.

ORS 90.610(3) (Informal dispute resolution; notice of proposed change in rule or regulation; objection to change by tenant) explains how rules are changed:

The landlord may propose changes in rules or regulations, including changes that make a substantial modification of the landlord’s bargain with a tenant, by giving written notice of the proposed rule or regulation change, and unless tenants of at least 51 percent of the eligible spaces in the facility object in writing within 30 days of the date the notice was served, the change shall become effective for all tenants of those spaces on a date not less than 60 days after the date that the notice was served by the landlord.

      (4) One tenant of record per eligible space may object to the rule or regulation change through either:

      (a) A signed and dated written communication to the landlord; or

      (b) A petition format that is signed and dated by tenants of eligible spaces and that includes a copy of the proposed rule or regulation and a copy of the notice.

      (5) If a tenant of an eligible space signs both a written communication to the landlord and a petition under subsection (4) of this section, or signs more than one written communication or petition, only the latest signature of the tenant may be counted.

      (6) Notwithstanding subsection (4) of this section, a proxy may be used only if a tenant has a disability that prevents the tenant from objecting to the rule or regulation change in writing.

      (7) The landlord’s notice of a proposed change in rules or regulations required by subsection (3) of this section must be given or served as provided in ORS 90.155 and must include:

      (a) Language of the existing rule or regulation and the language that would be added or deleted by the proposed rule or regulation change;

Subsection (7) of ORS 90.610 provides the statutory form to follow when changing rules.

In regards to rental agreements, ORS Chapter 90.510(4) mandates the minimal provisions that must appear in the rental agreement:

Every landlord who rents a space for a manufactured dwelling or floating home shall provide a written rental agreement, except as provided by ORS 90.710 (2)(d) [enforceability of oral rental agreements]. The agreement must be signed by the landlord and tenant and may not be unilaterally amended by one of the parties to the contract except by:

      (a) Mutual agreement of the parties;

      (b) Actions taken pursuant to ORS 90.530, 90.533, 90.537, 90.543 (3), 90.600, 90.725 (3)(f) and (7) or 90.727; or

      (c) Those provisions required by changes in statute or ordinance.

      (5) The agreement required by subsection (4) of this section must specify:

      (a) The location and approximate size of the rented space;

      (b) The federal fair-housing age classification;

      (c) The rent per month;

      (d) All personal property, services and facilities to be provided by the landlord;

      (e) All security deposits, fees and installation charges imposed by the landlord;

      (f) Any facility policy regarding the planting of trees on the rented space for a manufactured dwelling;

      (g) Improvements that the tenant may or must make to the rental space, including plant materials and landscaping;

      (h) Provisions for dealing with improvements to the rental space at the termination of the tenancy;

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

      (j) That the tenant may not sell the tenant’s manufactured dwelling or floating home to a person who intends to leave the manufactured dwelling or floating home on the rental space until the landlord has accepted the person as a tenant;

      (k) The term of the tenancy;

      (L) The process by which the rental agreement or rules and regulations may be changed, which shall identify that the rules and regulations may be changed with 60 days’ notice unless tenants of at least 51 percent of the eligible spaces file an objection within 30 days; and

      (m) The process by which the landlord or tenant shall give notices.

Conclusion.  So, in my opinion, the differences between rules vs. rental agreement, can be generally summarized as follows:

• The contents of what goes into rules, are not specifically described in the Oregon Residential Landlord Tenant Laws – the only general guidance is that they must be fairly applied, and reasonably related to the purpose for which they were enacted.
• The rental agreement must address certain issues, as set forth in ORS 90.510(4), above.
• A violation of either the rules or the rental agreement can result in a for cause notice of termination under ORS 90.630.
• While rental agreements cannot generally[1] be unilaterally changed by the landlord, there is a clear process under the law for amending the rules.
• So while “rules” are technically a part of the overall “rental agreement” between the landlord and tenant, they are the “mortar” that fills in the gaps the rental agreement doesn’t cover. So for example, while the rental agreement may require that tenants conduct themselves in such a manner as to preserve their neighbor’s quiet enjoyment of their spaces, the rules may address more specifics of this duty, such as lawn mowing, leaf blowing, loud parties, etc.
• I frequently see much unnecessary overlap in rules and rental agreements, e.g. covering the same things, or covering them inconsistently. This is unfortunate, since it can create confusion among tenants. My rule of thumb would be that in the event of an inconsistency, you should not try to enforce a specific prohibition in one of the documents, if the other is more lenient. Or to put it another way, in the event of two provisions addressing the same issue, landlords should enforce the more lenient of them.

[1] There are several exceptions relating to changes which, for example, permit landlords to take advantage of newer statutes that give rights not formerly described by the law or found in rental agreements, such as the right to submeter spaces, etc.

Answer: ORS 90.530 (Pets in Facilities) provides as follows:

Notwithstanding a change in the rules and regulations of a manufactured dwelling or floating home facility that would prohibit pets, a tenant may keep a pet that is otherwise legally living with the tenant at the time the landlord provides notice of the proposed change to the rules and regulations of the facility. The tenant may replace a pet with a pet similar to the one living with the tenant at the time the landlord provided notice of the proposed change. New rules and regulations that regulate the activities of pets shall apply to all pets in the facility, including those pets that were living in the facility prior to the adoption of the new rules or regulations.

(2)A rental agreement between a landlord renting a space for a manufactured dwelling or floating home and a tenant renting the space must comply with the following:

(a)A landlord may not charge a one-time, monthly or other periodic amount based on the tenant’s possession of a pet.

(b)A landlord may provide written rules regarding control, sanitation, number, type and size of pets. The landlord may require the tenant to sign a pet agreement and to provide proof of liability insurance. The landlord may require the tenant to make the landlord a co-insured for the purpose of receiving notice in the case of cancellation of the insurance.

(c)A landlord may charge a tenant an amount for a violation of a written pet agreement or rules relating to pets not to exceed $50 for each violation.

MHCO Form 05A Space Rental Agreement provides in relevant part:

• Sec. 5 (Additional Fees and Charges) includes place for Landlord to attach the Pet Agreement.
• Section 8 (Community Rules and Regulations; Fines) provides: 8.1 TENANT represents that TENANT has read the Community Rules and Regulations, and agrees to comply therewith, as well as any additional rules and regulations that have been adopted by LANDLORD. A copy of the Community Rules and Regulations is attached and made part of this Agreement. TENANT is responsible for the acts of members of TENANT’S household, TENANT’S pets, occupants, guests and visitors. Violation of this Agreement or any Community Rule and Regulations may be cause for termination. 8.2 As more fully described in ORS 90.302, LANDLORD may charge TENANT a fee for each occurrence of the following: (a) A late Rent payment; (b) A dishonored check; (c) Removal or tampering with a properly functioning smoke alarm, smoke detector or carbon monoxide alarm; (d) The violation of a written pet agreement or of a rule relating to pets in the Community;
• Sec. 12. (Tenant Agreements)TENANT agrees to the following: A. To be responsible for and pay all damages caused by the acts of TENANT, other occupants of TENANT’S Space, TENANT’S pets, occupants, guests and visitors.*** J. (Not applicable unless box is checked.)Maintain a homeowner’s policy of insurance that includes:(a) Coverage for fire in an amount sufficient to replace the Home; and (b) A general liability policy of not less than $100,000 per occurrence. (Note: The liability policy should comply with ORS 90.222.[1]) TENANT agrees to provide LANDLORD, upon request, with a current copy of such policy or policies. TENANT(S) Initials: _____________
• Sec. 13B (1) (Termination of Tenancy by Landlord): TENANT or others occupying TENANT’S Home violate a law or ordinance which relates to TENANT’S conduct as a tenant or violates this Agreement or the Community Rules and Regulations. 

MHCO For 21 (Pet Agreement) provides in relevant part:

Sec. 4. Resident shall maintain at all times a policy of general liability insurance in a company satisfactory to Management with coverage of not less than $250,000 naming Management as a co-insured. Said policy shall provide insurance coverage in the event of any claims, damages or liability arising as a result of any injuries to other Residents, their guests or other third parties directly or indirectly caused by Resident’s pet(s). Said policy shall include a provision that Management must be notified prior to cancellation. A copy of the policy shall be provided to Management together with evidence satisfactory to management that the policy is in full force and effect for so long as Resident has the pet(s) at this Community.

MHCO For 21A (Assistance Animal Agreement) provides in relevant part:

Appearing at top of form: [Note: Landlord reserves the right to refuse to permit an animal becoming an assistance animal if: (a) It has previously caused verifiable and significant damage or injury to persons or property in the Community; (b) Landlord’s insurance carrier would cancel, substantially increase premiums, or adversely change policy terms because of the presence of a certain breed of dog or a certain animal andit would impose an undue financial and administrative burden for Landlord to secure a substitute carrier which would provide coverage for the Animal (hereinafter “Undue Burden”). Prior to such refusal, Landlord should secure written verification substantiating the Undue Burden.]

Summary of Above Information

• ORS 90.530 (Pets in Facilities) permits landlords to enact rules and regulations regarding pets. It also provides that management may require that tenants carry liability insurance on their pets and name the landlord as a co-insured.
• ORS 90.222 (Renter’s liability insurance), quoted in Footnote 1, does not apply to manufactured housing communities. ORS 90.222 addresses tenant liability insurance but says nothing about insurance for pets. Nevertheless, the provisions of ORS 90.222 should be reviewed, perhaps as a “best practice”, as they contain certain landlord limitations that perhaps can be applied when requiring pet insurance (See, for example, the provisions at Subsections 8 and 9 regarding family income limitations and subsidized housing.) In the event of a conflict between ORS 90.222 and ORS 90.530 (e.g. naming management as a co-insured under ORS 90.530), the manufactured housing statute, ORS 90.530, would apply, as ORS 90.222 does not pertain to parks
• The MHCO Space Rental Agreement addresses tenant liability insurance of at least $100,000, but this is optional, and the adjacent box must be checked to apply. It also allows landlord to require the tenant to sign a Pet Agreement. Under the Space Rental Agreement there are several provisions regarding tenant responsibility and liability for damage or injury caused by their pets.
• The MHCO Pet Agreement requires $250,000 liability insurance, naming management as a co-insured.
• The MHCO Assistance Animal Pet Agreement does notrequire that tenants obtain liability insurance, since an assistance animal is not regarded as a “pet”. However, it does permit management to decline to allow an assistance animal if, under certain circumstances, its insurance carrier would not provide insurance or would substantially increase the current premium.
• Note: I did not address park rules, since they can vary widely. But there is little question that park management may have a mandatory pet liability insurance provision in its rules, and as long as they apply to everyone, a rule change can be applied retroactively.

[1]90.222 Renter’s liability insurance.(1) A landlord may require a tenant to obtain and maintain renter’s liability insurance in a written rental agreement. The amount of coverage may not exceed $100,000 per occurrence or the customary amount required by landlords for similar properties with similar rents in the same rental market, whichever is greater.

      (2) Before entering a new tenancy, a landlord:

      (a) Shall advise an applicant in writing of a requirement to obtain and maintain renter’s liability insurance and the amount of insurance required and provide a reasonable written summary of the exceptions to this requirement under subsections (8) and (9) of this section.

      (b) May require an applicant to provide documentation of renter’s liability insurance coverage before the tenancy begins.

      (3) For an existing month-to-month tenancy, the landlord may amend a written rental agreement to require renter’s liability insurance after giving the tenant at least 30 days’ written notice of the requirement and the written summary described in subsection (2) of this section. If the tenant does not obtain renter’s liability insurance within the 30-day period:

      (a) The landlord may terminate the tenancy pursuant to ORS 90.392; and

      (b) The tenant may cure the cause of the termination as provided by ORS 90.392 by obtaining insurance.

      (4) A landlord may require that the tenant provide documentation:

      (a) That the tenant has named the landlord as an interested party on the tenant’s renter’s liability insurance policy authorizing the insurer to notify the landlord of:

      (A) Cancellation or nonrenewal of the policy;

      (B) Reduction of policy coverage; or

      (C) Removal of the landlord as an interested party; or

      (b) On a periodic basis related to the coverage period of the renter’s liability insurance policy or more frequently if the landlord reasonably believes that the insurance policy is no longer in effect, that the tenant maintains the renter’s liability insurance.

      (5) A landlord may require that a tenant obtain or maintain renter’s liability insurance only if the landlord obtains and maintains comparable liability insurance and provides documentation to any tenant who requests the documentation, orally or in writing. The landlord may provide documentation to a tenant in person, by mail or by posting in a common area or office. The documentation may consist of a current certificate of coverage. A written rental agreement that requires a tenant to obtain and maintain renter’s liability insurance must include a description of the requirements of this subsection.

      (6) Neither a landlord nor a tenant shall make unreasonable demands that have the effect of harassing the other with regard to providing documentation of insurance coverage.

      (7) A landlord may not:

      (a) Require that a tenant obtain renter’s liability insurance from a particular insurer;

      (b) Require that a tenant name the landlord as an additional insured or as having any special status on the tenant’s renter’s liability insurance policy other than as an interested party for the purposes described in subsection (4)(a) of this section;

      (c) Require that a tenant waive the insurer’s subrogation rights; or

      (d) Make a claim against the tenant’s renter’s liability insurance unless:

      (A) The claim is for damages or costs for which the tenant is legally liable and not for damages or costs that result from ordinary wear and tear, acts of God or the conduct of the landlord;

      (B) The claim is greater than the security deposit of the tenant, if any; and

      (C) The landlord provides a copy of the claim to the tenant contemporaneous with filing the claim with the insurer.

      (8) A landlord may not require a tenant to obtain or maintain renter’s liability insurance if the household income of the tenant is equal to or less than 50 percent of the area median income, adjusted for family size as measured up to a five-person family, as determined by the Oregon Housing Stability Council based on information from the United States Department of Housing and Urban Development.

      (9) A landlord may not require a tenant to obtain or maintain renter’s liability insurance if the dwelling unit of the tenant has been subsidized with public funds:

      (a) Including federal or state tax credits, federal block grants authorized in the HOME Investment Partnerships Act under Title II of the Cranston-Gonzalez National Affordable Housing Act, as amended, or the Community Development Block Grant program authorized in the Housing and Community Development Act of 1974, as amended, project-based federal rent subsidy payments under 42 U.S.C. 1437f and tax-exempt bonds.

      (b) Not including tenant-based federal rent subsidy payments under the Housing Choice Voucher Program authorized by 42 U.S.C. 1437f or any other local, state or federal rental housing assistance.

      (10) Subsection (9) of this section does not apply to a dwelling unit that is not subsidized even if the unit is on premises in which some dwelling units are subsidized.

      (11)(a) If a landlord knowingly violates this section, the tenant may recover the actual damages of the tenant or $250, whichever is greater.

      (b) If a landlord files a frivolous claim against the renter’s liability insurance of a tenant, the tenant may recover from the landlord the actual damages of the tenant plus $500.

      (12) This section does not:

      (a) Affect rights or obligations otherwise provided in this chapter or in the rental agreement.

      (b) Apply to tenancies governed by ORS 90.505 to 90.850. [2013 c.294 §2; 2015 c.180 §38; 2015 c.388 §5]

Answer: There is no need to create a new rental agreement unless there is a good reason. A “good reason” might be because the existing rental agreement is old and outdated. But if you are to use a new rental agreement for the existing and new tenant, the existing tenant will have to agree, since technically you cannot “force” the existing tenant to sign a new one.

If that is not an issue, just have the new tenant sign an addendum to the existing rental agreement. I think that is cleaner that having the new tenant just sign and date the existing rental agreement. (This isn’t fatal in just signing the existing document – it is just my preference for a clean paper-trail.)

If using an addendum, all it needs to say is that the new tenant agrees to be bound by all (a) existing rules and regulations currently in place, the existing Statement of Policy, and all pending notices such as rules changes, utility changes, and related documents, which the new tenant confirms they have read and understand. You should make sure that you list all such documents in the addendum, just to make sure there is no confusion by the new tenant about what they are signing on to. You and the new tenant should then date and sign the addendum, giving him or her a copy and keeping one for the file.

As for whether this new tenant will be subject to the rent increase you have planned in six months, the answer is “Yes.”  There is a common misconception that MHP landlords cannot increase rent during the first year of tenancy. While it is true that rent cannot be increased during the first year of a non-MHP tenancy[1] (i.e., where the tenant does not own the home, or it is an RV) that limitation does not apply to MHP tenancies where the tenant owns their home. See, ORS 90.600, the MHP rent increase statute. It does not contain any limitations on increases within the first year of tenancy.

Caveat: If you have park-owned homes or RVs in spaces, the one-year prohibition of ORS 90.323 (3)(a) does apply.

[1] See, ORS 90.323 (3)(a).

Answer: You do not have to offer him a rental agreement.  Since you indicate that he has signed the MHCO vacation occupancy agreement, presumably he qualifies as a vacation occupant.  Under Oregon law (ORS 90.110 (7)), vacation occupants are not tenants and are not entitled to be offered a rental agreement. 

As per ORS 90.100 (54), “vacation occupancy” is defined as: (1) The occupant is renting the RV space for vacation purposes only, not as a principal residence, (2) the occupant has a principal residence other than at the space, (3) the period of occupancy cannot exceed 90 days, (4) the RV must be removed from the park at the end of the occupancy period, and (5) a written agreement signed by the occupant states that occupancy of the space in the RV park is a vacation occupancy and is NOT subject to the Oregon Residential Landlord and Tenant Act (ORS Chapter 90).

Since vacation occupants are not “tenants,” they may be asked to vacate at any time without issuing an eviction notice or going to court.  If necessary, law enforcement may be called to remove vacation occupants as trespassers if they refuse to leave.  In that case, you must have a copy of the written vacation occupancy agreement available to show the responding officers that the occupants are not tenants under Oregon law and can be cited for trespassing.  They are effectively the same as a hotel guest that refuses to leave.

If, for some reason, law enforcement refuses to remove a vacation occupant, you might need to file an eviction case in your county circuit court.  Be sure not to accept payment from the person for any period of time after the 90-day occupancy period or it could create a tenancy.  You will need to file an eviction case for a “tenancy not covered by ORS Chapter 90.”  The court clerk should have a complaint form that you can use, or consult with an attorney to file the case.

Mark L. Busch, P.C., Attorney at Law, Cornell West, Suite 200, 1500 NW Bethany Blvd., Beaverton, Oregon 97006; Phone: 503-597-1309; Web:  www.marklbusch.com

Answer. I suspect you allowed the caregiver in without putting her on an Occupancy Agreement (MHCO Form No. 25 ). See, ORS 90.275. It gives you great latitude to control an occupant's activities, since violation can result in eviction action directly against the caregiver.

The following is a summary of my conversation with the Fair Housing Council of Oregon on the issue of whether landlords can put caregivers on Temporary Occupancy Agreements, rather than putting them on a Rental Agreement, or not putting them on any written agreement (which leaves in doubt their legal status if the Landlord wants them removed from the Community).

• If the caregiver doesn'tqualify based on the background check[1] then you don't have to accept them into the Community;
• If they violate rules of the community when they are already in the Community and under the agreement, you can require they leave;
• You can pre-qualify the person as a care provider, i.e. required a letter or similar proof from a doctor or someone, saying the tenant needs someone 24/7;
• If they can't provide that proof, then you don't have to allow them into the Community as a care provider (although I can't imagine it would be very hard to obtain such proof);
• According to the Fair Housing Counsel, you are to give the tenant a choice (assuming the person qualifies under the background check), i.e. they can put the person on an Occupancy Agreement or go onto a Rental Agreement. You can't automatically say, "OK, you must go on an Occupancy Agreement." [Caveat: I do not agree with this position, and do not endorse it. The consequences of putting a caregiver on a rental agreement is that you have an much stricter protocol when they violate the rules or laws - e.g. written notice and opportunity to cure, etc. I believe that caregivers and others who are there on a temporary arrangement should remain on the Temporary Occupancy Agreement. This is exactly what the agreement was designed to do. Both Rental Agreements and Temporary Occupancy Agreements only permit termination "for cause" so this is not a situation the landlord can abuse without consequences.]

If you did not put the caregiver on a Temporary Occupancy Agreement means that the caregiver is merely a "guest" of the tenant, and if the guest violates the rules, you have to send a 30-day notice to the tenant; if the rules continue to be violation, your only option is to terminate the tenant's tenancy, and the caregiver is out too. But, this is not what you want to do.

I suggest that you consider having the caregiver sign a Temporary Occupancy Agreement. Of course, she could refuse, but it's worth a try. I have been successful doing so in the past.

If that does not work, you may consider giving the proper termination notice[2] and then filing for eviction against the tenant and "all others", i.e. the caregiver. Then when the matter gets to court, inform the court that you don't want to evict the tenant, only the caregiver. (I have had a judge agree to do so in the past.) You could then either ask the judge to evict the caregiver, or through the mediation that occurs in these proceedings, provide that the caregiver can stay, but only if she signs the Temporary Occupancy Agreement.

By the way, if the tenant has dementia, something needs to be done through the local social service agency, since it does not sound as if he can take care of himself along. Good luck!

[1] Remember, you cannot require financial capacity if they are to be an occupant, but you can if they are to be a tenant.

[2] I strongly recommend have your attorney review the 30-day notice you previously gave before sending out a repeat violation notice. This situation is too important to get into court and have the case thrown out for a defective notice.

Historically, it has been common knowledge that once signed by the landlord and tenant, a rental/lease agreement may not be amended unless all parties agree. However, over the years, as landlord-tenant legislation began to detail more and more rights and liabilities, the issue arose as to how changes in the law were to be applied, when they did not appear in the rental/lease agreement.

In summary, ORS 90.510(4) provides that a park rental or lease agreement may not be unilaterally amended except under the following circumstances:

a) Both parties agree; or

b) Certain specific statutes specifically allowunilateral amendment; or

c) Certain specific statutes automatically requirethat the rental/lease agreement is changed.

In the case of subsection (4)(b), ORS 90.510 specifically lists those statutes which allow a landlord to unilaterally impose a change in the rental/lease agreement. A common example is the submetering statutes. When they first came into effect, many - if not most - agreements did not specifically address the multiplicity of issues that would be effected, from removing certain utilities from base rent, to direct billing, to accessing a space to install and read the meters.

In the recent Court of Appeals case of Morat v.Sunset Village, LLC, the focus was on how ORS 90.510(4)(b) should be interpreted. The Court explained the issue in the opening of its opinion:

This case involves a conflict between a tenant and landlordaboutwhopaysthecostresultingfromafallentree in a manufactured dwelling park. At issue are a statute on trees in rented spaces (ORS 90.727), a statute on "unilateral amendment" of a rental agreement (ORS 90.510(4)), the terms of the parties' lease, and the trial court's award of attorney fees incurred in court-annexed arbitration. [1]

The Court found in favor of the plaintiff-tenant. Setting aside the fact that in trial, the tenant put on evidence that the prior landlord had always cleaned up tree limbs that littered spaces after a storm, the main issue was fairly straight forward: Does the unilateral amendment language of ORS 90.510(b) require the landlord to actually amend the rental/lease agreement (as argued by the tenant),or is it automatic under subsection (4)(c) which provides that "(c)ertain specific statutes automatically require that the rental/lease agreement is changed" (as argued by the landlord).[2]

The Court held that although ORS 90.510(4)(b) explicitly allows landlords to unilaterally amend the rental/lease agreements to allocate responsibility, the enumerated statutes (including hazard tree statute) are not automatically effective. That is, the rental/lease agreement actually has to be unilaterally amended. In other words, contrary to the position taken by the park owner in the above case, in order to gain the benefit of allocating responsibility between landlords and tenants for trees on a space, management was first required to affirmatively "unilaterally amend" the rental/lease agreement.

Although the Court did not get into specifics as how this is done, it is not difficult to comply, e.g. send to each tenant a single page amendment, stating that pursuant to ORS 90.510(4)(b), their rental/lease agreement is '_hereby amended to adopt ORS 90.727 Maintenance of Trees in Rented Spaces)." Either the statute should be quoted verbatim, or a copy attached to the unilateral amendment. And of course, the amendment should be included in each tenant's file.

So the take-away for MHP landlords is that if you want the protection/enforcement provisions of the following statutes (and your current rental/lease agreement does not already contain them), you should make a unilateral amendment:

- ORS 90.530 (Pets in facilities);

- ORS 90.533 (Conversion of billing method for garbage collection and disposal);

- ORS 90.537 (Conversion of billing method for utility or service charges);

- ORS 90.543 (Utility or service charge billing for large manufactured dwelling parks);

- 90.600 (Increases in rent);

- 90.725 (Landlord or agent access to rented space); and

- 90.727 (Maintenance of trees in rented spaces).

At the end of MHCO's rental and lease agreements, the following provision appears, which should serve as a prompt for all landlords to issue a unilateral amendment document to tenants when (a) permitted by Oregon law, and (b) the provision is not already contained in the rental/lease agreement:

TENANT understands and agrees that in the event of any changes in local, State or Federal laws affecting the parties' rights or remedies herein, LANDLORD, in LANDLORD'S sole discretion, may request that TENANT sign one or more written addenda expressly incorporating such changes into this Agreement. TENANT'S failure to sign such written addenda within ten (10) days of LANDLORD'S written request to do so shall constitute a breach of this Agreement. No such change shall be retroactively applied to any circumstance that occurred prior to the date such new law became effective. Notwithstanding the preceding, LANDLORD shall have no duty to amend, alter or adjust this Agreement due to any laws or ordinances enacted after the Commencement Date, regarding Rent, Rent control, Rent adjustment, or any other limitation, restriction or provision affecting or limiting the amount of Rent LANDLORD may charge for this Space. TENANT(S) Initials): _______ _______

It appears the rental or lease agreement at issue in the above-referenced case did not contain such a reminder.

[1]The following discussion does not address whether ORS 90.727 applies to fallen trees.

[2]Query: If subsection (c) automaticallyapplied to trees on tenant spaces, why was subsection (b) necessary? In other words, it would seem that (b) would not need to have been included in ORS 90.510(4).

1. A landlord may charge a screening fee solely to cover the costs of obtaining information on the applicant.  The landlord must provide the applicant with a receipt for any such screening fee.
2. A landlord may not charge non-refundable fees to secure a signing of a rental agreement.
3. A landlord may charge a deposit to an applicant for the purpose of securing the execution of a rental agreement after the applicant's application has been approved.   If the rental agreement is executed, the landlord shall either apply the deposit toward the moneys due the landlord under the rental agreement or refund it immediately to the tenant/resident.
4. If the Rental Agreement is not executed due to a failure by the applicant to comply with the agreement to execute, the landlord may retain the deposit.
5. If the Rental Agreement is not executed due to a failure by the resident to comply with the agreement to execute, then the landlord shall return the deposit to the applicant within four days.

 A landlord may charge a fee more than once, at the beginning of or during the tenancy, for:

1. A late rent payment
2. A dishonored check
3. Removal or tampering with a properly functioning smoke alarm or smoke detector
4. Any other noncompliance by the tenant with a written rental agreement that provides for a fee for that noncompliance, provided that the fee is not excessive.

Answer: This question involves 90.297, which provides as follows: - Except as permitted in ORS 90.295 (fees for tenant screening charges) a landlord may not charge a deposit or fee, however designated, to an applicant who has applied to a landlord to enter a rental agreement for a dwelling unit. - A landlord may charge a deposit, however designated, to an applicant for the purpose of: _ Securing the execution of a rental agreement, after approving the applicant's application but prior to entering into a rental agreement. _ Is so, the landlord must give the applicant a written statement describing: - The amount of rent and the fees the landlord will charge and the deposits the landlord will require; and - The terms of the agreement to execute a rental agreement and the conditions for refunding or retaining the deposit. - If a rental agreement is executed, the landlord shall either apply the deposit toward the moneys due the landlord under the rental agreement or refund it immediately to the tenant. - If a rental agreement is not executed due to a failure by the applicant to comply with the agreement to execute, the landlord may retain the deposit. - If a rental agreement is not executed due to a failure by the landlord to comply with the agreement to execute, within four days the landlord shall return the deposit to the applicant either by making the deposit available to the applicant at the landlord's customary place of business or by mailing the deposit by first class mail to the applicant. - If a landlord fails to comply with these rules, the applicant or tenant, as the case may be, may recover from the landlord the amount of any fee or deposit charged, plus $150. Based upon the above, it is my opinion that it would be improper to charge a "move-in fee," unless it was designed to secure the execution of the rental agreement before the applicant took occupancy. If the rental agreement is already signed, there is nothing to "secure" and the fee would be inappropriate.

1. What does mediation mean? Mediation is an alternative dispute resolution process that is different from going to court and having a judge (or jury) pick a winner and loser by determining the facts and applying the law to the facts. Mediation is also different from arbitration. At an arbitration, the parties typically pick a person (usually an attorney) to act like a judge and determine the facts and apply law. At an arbitration there is also a winner and a loser. 

In mediation, the parties typically pick a third party neutral who will meet with the parties to help them find a solution to resolve a dispute. Because mediation requires the agreement of the parties to come to a resolution, it is not always successful. Mediation does not limit a party’s ability to file a lawsuit or arbitration.

In my experience, the cases that resolve at mediation are where both parties come with an open mind, are willing to listen and can consider compromise in order to avoid the cost and hassle of litigation. 

In my experience, the cases that don’t resolve are usually because one of the parties has unrealistic expectations or opinion of their case, or that the matter should move forward based on “principle.” 

2.   When is mediation required? Mediation is required for any non-exempt issues (see question 3) involving compliance with the rental agreement or non-exempt conduct of a landlord or a tenant within the facility. Please note that a facility is a manufactured home park or a floating home marina. Mediation can be initiated regarding a non-exempt dispute between a landlord and a tenant or between two or more tenants. Note that if the dispute is between two or more tenants, mediation must be initiated by the landlord. 

3.   What types of disputes are exempt (i.e. not subject to mediation)? The following disputes are not subject to mediation:

(a) Facility closures consistent with ORS 90.645 or 90.671; 

(b) Facility sales consistent with ORS 90.842 to 90.850; 

(c) Rent payments or amounts owed, including increases in rent consistent with ORS 90.600;

(d) Termination of tenancy pursuant to ORS 90.394 (failure to pay rent), 90.396 (24 hour notices), or 90.630(8) (three strike provision); 

(e) A dispute brought by a tenant who is alleged to be a perpetrator of domestic violence, sexual assault or stalking under ORS 90.445 when the dispute involves either the allegation or the victim of domestic violence, sexual assault or stalking; 

(g) A dispute involving a person not authorized to possess a dwelling unit as described in ORS 90.403; or 

(h) A dispute raised by the landlord or tenant after the tenancy has terminated and possession has been returned to the landlord (including ORS 90.675 (abandonments). 

4.   How is mediation initiated? Mediation may be initiated by a tenant or a landlord. If a tenant or landlord initiates the mediation process, then the parties are required to participate (but see questions 7 and 8 below). If there is a dispute between or among tenants, a landlord must initiate mediation.  

5.   What if mediation is not currently included in my rental agreement? A landlord and/or tenant is required to mediate regardless of whether a rental agreement currently provides for mediation. If a rental agreement does not currently have such a process, SB 586 requires a landlord to unilaterally amend the rental agreement to include mediation. Specifically, ORS 90.510 (5) (what is required to be included in rental agreements) is amended to include in a rental agreement a section for mandatory mediation of disputes that states: “that the tenant or the landlord may request mandatory mediation of a dispute that may arise concerning the rental agreement or the application of this chapter, and the process by which a party may request mediation, including a link to the web site for the Manufactured and Marina Communities Resource Center with additional information about mandatory mediation of disputes.”

 6.  Who facilitates a mediation? Mediation may be requested through either: (1) Manufactured and Marina Communities Resource Center (“MMCRC”); or (2) a local Community Dispute Resolution Center (“CDRC”); or (3) a mutually agreed-upon and qualified mediator. Each party must cooperate with the CDRC or designated mediator in scheduling a mediation session at a mutually agreeable day and time, within 30 days of the initiation of mediation. Each party must attend at least one mediation session. 

7.   Who has to participate in the mediation (i.e. does it have to be the owner)?  A landlord can designate a representative to participate in the mediation on the Landlord’s behalf (including a non attorney). The representative, however, must have the authority to resolve the dispute in the mediation.  Note that a tenant can also designate a representative.

8.   Do I have to reach an agreement in the mediation?  No. Neither party is required to reach an agreement in a mediation. Each party must attempt to mediate the dispute in “good faith.”  The law specifically says that the parties are not required to: (1) reach an agreement on all or any issues in the mediation; (2) participate in more than one mediation session; (3) participate for an unreasonable length of time in a mediation session; or (4) participate if the other party is using the mediation to harass the party or is otherwise abusing the duty to meditate.

9.   What would happen if a party failed to meditate in good faith? If a party fails to meditate in good faith by abusing the right to require mediation or uses mediation to harass the other party, the aggrieved party may recover an amount equal to one month’s rent from the violating party. Please note that this is a two way street. In addition, the other party has a defense to any claim brought by the violating party over the dispute involved in the mediation request, and may have the claim dismissed.

10. Can I use an admission in mediation at a subsequent trial? Conversely, can something I say be used against me? No. Mediation, and what is said during mediation, is confidential. Any statement made in a mediation is inadmissible. The purpose is to have an honest dialogue in order to encourage a settlement. Additionally, a mediator cannot be called as a witness.

11. 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) before the 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. 

12. 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. 

13. 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. 

14. 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.

15. 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 Center to employ one attorney to provide direct legal services to statewide park and marina residents on matters arising under the Oregon Residential Landlord Tenant Act.

16. 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.

17. When does all of this go into effect? The effective date of SB 586 is January 1, 2010.