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Answer: It’s easy to get confused. There is a lot to remember. Generally all of the answers are contained in ORS 90.630 [Termination by landlord; causes; notice; cure; repeated nonpayment of rent]. Here is a short summary: • The landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy in a manufactured housing community by giving not less than 30 days’ notice in writing before the date designated in the notice for termination if the tenant: o Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740 [Tenant Obligations]; o Violates a rule or rental agreement provision; o Is determined to be a predatory sex offender under ORS 181.585 to 181.587; or o Fails to pay a (i) a late charge pursuant to ORS 90.260; (ii) A fee pursuant to ORS 90.302; or (iii) a utility or service charge pursuant to ORS 90.534 or 90.536. • The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in notice of violation. However, if substantially the same act or omission recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days’ written notice specifying the violation and the date of termination of the tenancy. In such cases, the tenant does not have a right to correct the violation – and the notice must so state. • Oregon’s “three strikes” law only applies to cases in which the tenant is issued three 72-hour [or 144-hour] notices within a 12-month period. The “three strikes” law is found at ORS 90.630(8)-(10). As noted above, multiple violations of the same or similar rule within six months can result in the landlord’s issuance of a non-curable 20-day notice to the tenant.

Answer:  It’s easy to get confused. There is a lot to remember.  Generally all of the answers are contained in ORS 90.630[Termination by landlord; causes; notice; cure; repeated nonpayment of rent].[1]Here is a short summary:

· The landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy in a manufactured housing community by giving not less than 30 days’ noticein writing before the date designated in the notice for termination if the tenant:

• Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740[Tenant Obligations];
• Violates a rule or rental agreement provision;
• Is determined to be a predatory sex offender under ORS 181.585 to 181.587; or
• Fails to pay a (i) a late charge pursuant to ORS 90.260; (ii) A fee pursuant to ORS 90.302; or (iii) a utility or service charge pursuant to ORS 90.534or 90.536.

· The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in notice of violation. However, if substantially the same act or omission recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days’ written noticespecifying the violation and the date of termination of the tenancy.  In such cases, the tenant does nothave a right to correct the violation – and the notice must so state. 

· Oregon’s “three strikes” law only applies to cases in which the tenant is issued three 72-hour [or 144-hour] notices within a 12-month period.  [Caveat: All three notices must have been validly prepared and delivered or served. – PCQ]The “three strikes” law is found at ORS 90.630(8)-(10).As noted above, multiple violations of the same or similar rule within six months can result in the landlord’s issuance of a non-curable 20-day notice to the tenant.

Answer. ORS 90.630(1) provides as follows:

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

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

The exception found at subsection (4) says:

The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in subsection (1) of this section. However, if substantially the same act or omission that constituted a prior violation of which notice was given recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days written notice specifying the violation and the date of termination of the tenancy.

The rules prohibit running a business inside the community. I suspect that the local zoning ordinances do as well. So if the resident intends to run the same type of business as in town, in her home, it would likely violate both the park rules and the local land use ordinances. I also suspect that by whatever name she describes it, she is in the business of selling marijuana from her home.

The fact that she may hold a medical marijuana card permitting this activity does not persuade me that it is a ticket to place her grow site operation in a location that violates the park rules or the local land use rules.

On the State of Oregon website describing the Medical Marijuana Dispensary Program, here, it provides that:

The law requires the Oregon Health Authority to develop and implement a process to register medical marijuana facilities, which must be located on property zoned for commercial, industrial, mixed use or agriculture uses only. The issue of whether a local government believes a certain type of business should operate within one of these zones is a local government decision.

On March 19, 2014, Senate Bill 1531 was signed into law. SB 1531 gives local governments the ability to impose certain regulations and restrictions on the operation of medical marijuana dispensaries, including the ability to impose a moratorium for a period of time up until May 1, 2015. The law also authorizes the Oregon Health Authority to issue refunds upon request to dispensary applicants whose facilities are located in an area that falls under a moratorium.

Update:

Read the list of cities and counties that have enacted a moratorium on medical marijuana dispensaries. The Medical Marijuana Dispensary Program was last notified by a city or county of changes to this list on 5/21/14. This list includes only cities and counties that have submitted documentation of a moratorium to the Medical Marijuana Dispensary Program, consistent with the rules implementing SB 1531. The Oregon Health Authority is only authorized to offer a full refund to applicants and licensees whose dispensaries are located in an area named on this list.

Before going into battle with this resident, I suggest that you ask that she describe for you, in writing, exactly what she proposes to do, so that you can better understand and evaluate it. Once you fully understand the business model, you will be in a much better position to know whether her plans will constitute a violation that you may enforce. But remember, your remedy under ORS 90.630(1) and (4) is to give her a 30-day notice and opportunity to cure.

Based upon the state requirement that the grow site operation be consistent with local zoning laws, I do not view this as a fair housing issue. And based upon my prior MHCO articles on this subject, I do not believe the Oregon Bureau of Labor and Industries (the state's fair housing enforcement arm) would pursue your denial of the resident's request for a reasonable accommodation (i.e. permitting you to "bend" the rules, and ignore the land use laws).

Answer:  You must have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical.  Generally, communities strive to be over 80%, since falling below 80% occupancy[even upon death of a qualifying 55+ resident]means immediatedisqualification.  Does this mean that your 15% safety margin must be reserved for families with children? The answer is “No.”  In fact, a 55+ community should strive for 100% occupancy by persons age 55 or over.  Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age? Again, the answer is “No.”  If desired, a 55+ community may impose a minimum age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years.   

However, it is also important for you to publish and adhere to policies and procedures that demonstrate an intent to operate as a 55+ community. This requirement is fairly self-explanatory; i.e. you should make sure that in all advertising, rules, rental agreements, and  policies, you alwayshold the community out as a 55+ facility.  

Lastly, you must comply with HUD’s age verification of occupancy procedures to substantiate compliance with the requirement that at least 80% of the community is intended to be occupied by at least one person age 55 or over.The law provides that the followingdocuments are considered reliable for such verification: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.  

Answer. There are several that come into play:

• A tenant may terminate a rental agreement upon written notice if the tenant provides the landlord with proof of official orders showing that the tenant is:

(a)Enlisting for active service in the Armed Forces[1] of the United States;

(b)Serving as a member of a National Guard or other reserve component or an active service component of the Armed Forces of the United States and ordered to active service outside the area for a period that will exceed 90 days;

(c)Terminating active service in the Armed Forces of the United States;

(d)A member of the Public Health Service of the United States Department of Health and Human Services detailed by proper authority for duty with the Army or Navy of the United States and: (A) Ordered to active service outside the area for a period that will exceed 90 days; or (B) Terminating the duty and moving outside the area within the period that the member is entitled by federal law to the storage or shipment of household goods; or

(e)A member of the commissioned corps of the National Oceanic and Atmospheric Administration ordered to active service outside the area for a period that will exceed 90 days.

• Termination of a rental agreement is effective on the earlier of:

1. A date determined under the provisions of any applicable federal law; or (b) The later of: (A) 30 days after delivery of the notice; (B) 30 days before the earliest reporting date on orders for active service; (C) A date specified in the notice; or (D) 90 days before the effective date of the orders if terminating duty described under subsection (1)(d)(B) of this section or terminating any active service described in this section.

• A tenant who terminates a lease on account of the reasons listed above is not: (a) Subject to a penalty, fee, charge or loss of deposit because of the termination; or (b) Liable for any rent beyond the effective date of the termination.

[1] "Armed Forces of the United States" means the Air Force, Army, Coast Guard, Marine Corps or Navy of the United States.

Yesterday, the Senate Banking Committee released a bipartisan agreement to clarify that a manufactured housing retailer or seller is not considered a "loan originator" simply because they provide a customer with some assistance in the mortgage loan process.  This is a key tenet of the Preserving Access to Manufactured Housing Act, which excludes manufactured housing retailers and sellers from the definition of a loan originator so long as they are only receiving compensation for the sale of a home. 

MHI successfully argued that just as a real estate agent's sales commission does not make him or her a loan originator under current law, a similar distinction is needed for those selling manufactured homes.  While they are only in the business of selling homes and do not originate loans, manufactured home retailers and sellers currently run the risk of being considered mortgage loan originators. This is problematic because loan originators must comply with licensing or qualification requirements that are completely unrelated and irrelevant to manufactured home retailers and sellers.  This agreement affirms MHI's longstanding position that it is inappropriate for a manufactured housing retailer - whose business is to sell homes and who is not receiving any gain or compensation for minimally helping the borrower with the mortgage loan process - to be subjected to costly and labor-intensive activities that are clearly designed to apply to the actual individual making the mortgage loan.

The manufactured housing language was a part of a bipartisan regulatory reform package drafted by Senate Banking Committee Chairman Mike Crapo (R-ID). A bipartisan group of nine Republicans and nine Democrats cosponsored the measure, including: Mike Crapo (R-Idaho), Bob Corker (R-Tennessee), Tim Scott (R-South Carolina), Tom Cotton (R-Arkansas), Mike Rounds (R-South Dakota), David Perdue (R-Georgia), Thom Tillis (R-North Carolina), John Kennedy (R-Louisiana), Jerry Moran (R-Kansas), Joe Donnelly (D-Indiana), Heidi Heitkamp (D-North Dakota), Jon Tester (D-Montana), Mark Warner (D-Virginia), Tim Kaine (D-Virginia), Angus King (I-Maine), Joe Manchin (D-West Virginia), Claire McCaskill (D-Missouri), and Gary Peters (D-Michigan). 

The provision is in Section 107 of the package, which is within the title of the bill dealing with improving consumer access to mortgage credit.  Specifically, Section 107 amends the Truth in Lending Act (TILA) to exclude from the definition of "mortgage originator" an employee of a retailer of manufactured or modular homes who does not receive compensation or gain for taking residential mortgage loan applications while maintaining consumer protections. Senator Joe Donnelly (D-IN), author of the Preserving Access to Manufactured Housing Act (S. 1751) and long-time supporter of manufactured housing, strongly advocated for inclusion of this important consumer access provision in the package. 

The Senate's bipartisan reform package is expected to be considered by the Senate Banking Committee in the coming weeks. MHI will continue working with its champions as the package moves through the legislative process. 

The inclusion of this language in the Senate's financial regulatory relief package is the result of MHI's persistent efforts to ensure the needed changes contained in the Preserving Access to Manufactured Housing Act are passed into law as soon as possible. In addition to the Senate regulatory reform package, the full Preserving Access to Manufactured House Act was passed as a part of the House's financial reform package (H.R. 10) in June.   In September, the House also passed the bill's provisions as a part of its Fiscal Year 2018 Appropriations package. 

When they left their children's play furniture and other items out on the patio, the apartment manager issued a few warnings and then another $20 fine.

The family's actions violated apartment policies, according to a complaint filed last September in Multnomah County Circuit Court. But under an agreement with the state announced Friday, the apartment complex and its property management firm will pay nearly $65,000 to tenants, the state and a legal aid organization. They will have to ditch policies that tenants criticized as discriminating against families.

And they will have to install a playground structure.

"It's a really good (result) for families in Oregon," said Christina Dirks, who represented the Sazykins, one of several families who made claims against the apartment complex and property management firm Norris & Stevens. "It's helping to assure that families in our community have equal access to enjoy their rental housing."

Under the agreement, Wah Mai Terrace and Norris & Stevens, do not admit any wrongdoing.

Norris & Stevens representatives did not return a call for comment.

Jonathan Radmacher, an attorney for the Wah Mai Terrace owners, said the policies were never meant to be anti-children.

He noted that the apartment complex owners and property managers were quick to address the problems as soon as they were brought up.

The policy that barred tenants from storing items other than bikes and barbecue grills on their patios was to keep the look of the complex presentable and clean, Radmacher said. The policy that prohibited children from riding bikes, tricycles, Big Wheel-type toys, skateboards and rollerskates on the property was out of concern for older residents, he said.

"There are lots of places to play in the neighborhood," he said, noting Ventura Park and Floyd Light Middle School, both about a block or two away from the complex at SE 111th and SE Stark.

He criticized the state, saying that the apartment complex and property managers were not aware of the discrimination concerns until the state intervened and threatened them with tens of thousands of dollars in state legal fees. "I know my client would never want to have any policy that's discriminatory... They would always want that brought to their attention, and they would fix it," he said. About $35,000 of the settlement will go to six current and former tenants. Norris & Stevens and Wah Mai Terrace also must pay attorney fees and costs of $20,000 to the Oregon Department of Justice and $9,816.36 to Legal Aid Services of Oregon.

Representatives for the two entities must participate in training on fair housing practices.

They also cannot try to collect fines and other debts that were levied against tenants under the "potentially unlawful" policies.

Norris & Stevens, which manages 8,300 units throughout the Portland area, will adopt the revised policies at all properties in its portfolio, and not just to the Wah Mai Terrace Complex, the state said.

The change helps families - particularly low-income families - who don't have the means to just pick up and move elsewhere, said Dirks, a staff attorney with Legal Aid Services of Oregon. The rental market, as well, offers few options.

The Portland market is tied with Minneapolis for having the second-lowest vacancy rate in the nation, according to a survey of the National Association of Realtors.

Answer: You must have at least one person who is 55 years of age or older living in at least 80% of its occupied units. This 80/20 rule is critical. Generally, communities strive to be over 80%, since falling below 80% occupancy [even upon death of a qualifying 55+ resident] means immediate disqualification. Does this mean that your 15% safety margin must be reserved for families with children? The answer is "No." In fact, a 55+ community should strive for 100% occupancy by persons age 55 or over. Does it mean that community management must accept otherwise qualified age 55+ applicants when the second or subsequent person occupant is 18 years of age? Again, the answer is "No." If desired, a 55+ community may impose a minimum age requirement for the second or subsequent occupant to 25 years, 30 years, or even 55+ years.

However, it is also important for you to publish and adhere to policies and procedures that demonstrate an intent to operate as a 55+ community. This requirement is fairly self-explanatory; i.e. you should make sure that in all advertising, rules, rental agreements, and policies, you always hold the community out as a 55+ facility.

Lastly, you must comply with HUD's age verification of occupancy procedures to substantiate compliance with the requirement that at least 80% of the community is intended to be occupied by at least one person age 55 or over. The law provides that the following documents are considered reliable for such verification: (1) Driver's license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability or; (7) A certification in a lease, application, affidavit, or other document signed by an adult member of the household asserting that at least one person in the unit is 55 years of age or older.

Answer. What follows is a complicated answer to a simple question.

ORS 90.302 (Fees allowed for certain landlord expenses), Subsection (3) (b) (A) authorizes the assessment of a “fee” for noncompliance with written rules or policies governing, among other things, “(t)he late payment of a utility or service charge that the tenant owes the landlord as described in ORS 90.315” (Utility or service payments).

But that statute provides that the written rental agreement must expressly permit this fee. If it’s not in the agreement, ORS 90.302 (9) permits park owners to unilaterally amend it to impose noncompliance fees. A 90-day written notice must first be sent to the tenant.

But as occasionally occurs with legislation written by committees composed of disparate stakeholders, the sausage bill that results can become almost incomprehensible. That is the case with ORS 90.302(3) which describes a complicated implementation process, at best.[1]

If the above discussion isn’t sufficient in discouraging park landlords assessing fees for delinquent water charges, the information below should cinch the deal.

First, remember that the Oregon landlord-tenant law, ORS Chapter 90, is divided into two parts, (a) the non-manufactured housing side, and (b) the manufactured housing side. The latter side commences at ORS 90.505.[2]

Secondly, there is nothing in the manufactured housing utility billing statutes (ORS 90.560 – 90.584) which authorizes the assessment of a late fee for overdue utility charge payments. On the non-manufactured housing side, ORS 90.302 (3) (b) (A) does authorize the assessment of fees for late utility charge payments “… that the tenant owes the landlord as described in ORS 90.315.” (for utility or service charges).

Here is the conundrum: Does ORS 90.302 (3) (b) (A) refer to the utility charges described in ORS 90.315 or the obligation to pay the landlord as described in 90.315?

In ORS 90.560 (the definitions of utilities and services for the manufactured housing side of Chapter 90) it says that the term “utility or service” has the meaning given in ORS 90.315 (i.e., on the non-manufacturing housing side of ORS Chapter 90). The problem with this cross-reference is that the process for charging utility and service charges for manufactured homes and nonmanufactured homes are not the same – in fact, they are quite different.

For example, the procedure for billing utilities to an apartment tenant is described in ORS 90.315 (4) expressly does not apply to manufactured home tenancies. And the procedure for billing utilities to tenants in manufactured housing communities is set out in 90.562 (3) and (4).

Confused? Frustrated? Join the club! The best solution would be a legislative one, i.e., amend 90.302 (3) (b) (A) to include an express cross-reference to ORS 90.562 which would clarify the legislative intent to include both manufactured and non-manufactured housing.

Until then, there is room for disagreement on late fees for unpaid utility charges in manufactured housing communities; and disagreement can lead to litigation – something you don’t want. In the past I have seen park tenants bring claims against landlords for (allegedly) improperly imposed charges, fees, etc. The result is not pretty since each space may have a claim against the landlord for reimbursement of the past twelve months[3]of improperly assessed charges – plus attorney fees.

So, the short answer to your seemingly simple question, is that you do not want to risk assessing fees to residents for overdue payments of their water charges until the legislature clears up the confusion.

This is not to say you are without a remedy, but assessing a fee is not one I would recommend until the legislation clears up. Nonpayment of a utility or service charge is grounds for termination for cause under ORS 90.630. But beware, a landlord may not give a notice of termination under that statute for nonpayment of a utility or service charge sooner than the eighth day (including the first day it is due), after the landlord gives the tenant the written notice stating the amount of the utility or service charge.

Many thanks to John Van Landingham for his assistance in helping me detangle these statutes and their legislative history. Nobody has better institutional knowledge, perspective and understanding of Oregon’s landlord-tenant laws than John.