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Answer: The Department of Revenue (“DOR”) is treated like any other lienholder. It is critical that before the 45-day letter is sent, the park check with the Oregon Department of Consumer and Business Services (“DCBS”) to determine if there are any lienholders on title. We understand that DOR is now showing up on the DCBS records. Remember, if they show up on the record and you fail to give them notice, they could come back against the park for failing to notify them. If they show up on the DCBS records, they should be copied on the 45-day letter, and given all of the same rights as other lienholders, e.g. entering into a one year storage agreement, paying the storage fees, selling the home, etc. Currently, it is our understanding the DOR does not sign and returned storage agreements. If there is a purchase money lien on the property, it will be superior to the DOR and then it [the DOR] will only get payment if there is any equity from the sale. Since the property is worth more than $8,000, if there is no sale, it would go to auction. As a lienholder, the DOR is behind the park, in terms of payment of cost, and then the county tax collector [which presumably is current – thanks to the DOR]. Next, as a lienholder, the DOR would receive some payment. If there are any further proceeds, they would go to the tenant, and if the tenant cannot be located, then to the county fund. If the landlord follows these procedures, there is no remaining liability to the DOR for and of the taxes paid under the program.

Answer: It is now statewide law that rents cannot be raised at all during the first year of a month-to-month or fixed-term tenancy.  After the first year, you are required to give written notice to RV tenants at least 90 days prior to the effective date of the rent increase.  In addition, fixed-term tenancy rent increases must comply with whatever terms are in the fixed-term rental agreement.  (NOTE:  Week-to-week tenants can have their rent raised at any timewith at least seven days’ written notice prior to the effective date of the increase.)  

The written rent increase notice to all RV tenants must state (1) the amount of the rent increase; (2) the amount of the new rent; and, (3) the date on which the increase becomes effective.  If the notice is mailed to the tenants, you must add at least three additional days to the notice period (not counting the date mailed) to allow for mailing.  The mailing must be by regular, first class mail. Alternatively, the notice may be hand-delivered to tenants, but this means putting it directly in the tenant’s hand – posting the notice is legally ineffective.

Rent control also applies to rent increases for month-to-month and fixed-term RV tenants.  During any 12-month period, rent cannot be increased by more than 7% plus the consumer price index (CPI) from the previous year above the existing rent.  The CPI and maximum rent increase are calculated by the Oregon Department of Administrative Services and published annually in September to set the maximum rent increase amount for the following calendar year.  The maximum rent increase for month-to-month and fixed-term RV tenants in 2020 is 9.9%.  

A landlord who increases rent in violation of the rent control limits can be found liable to a tenant for three months’ rent, plus actual damages suffered by the tenant, plus attorney fees and court costs.  However, the rent control limits do not apply if:  (1) The first certificate of occupancy for the tenant’s RV space was issued less than 15 years from the date of the notice of a rent increase, or (2) the RV park is providing reduced rent to the tenant as part of a federal, state or local program or subsidy.  If one of these exemptions applies, the landlord must state facts supporting the exemption in the rent increase notice to the tenant if the rent increase exceeds the maximum allowable amount.

Finally, be aware that special rules apply within the city limits of Portland. By city ordinance, a rent increase of 10% or more within a rolling 12-month period triggers the tenant’s right to receive a “relocation assistance” payment from the landlord. These payments are based on the size of the rental unit and start at $2,900.  It is questionable whether the ordinance as written applies to RV tenancies.  However, if you ever intend to issue a rent increase of 10% or more within the City of Portland, you should first consult with a knowledgeable attorney to assess the risk of being subject to relocation assistance payments.

The typical commercial lease and property management agreement does not address viral epidemics. The duties and obligations of a landlord or property manager regarding limiting tenants' and guests' risk of exposure to the virus depends on what services, if any, the landlord or property manager provides at the property. In a net leased property where the tenant is responsible for its own maintenance and cleaning services, the landlord's public health obligations would be limited. However, a landlord or property manager who provides cleaning, janitorial and security services such as in a commercial office building or shopping center, should consider implementing the following operational recommendations:

• consult your local health department and the U.S. Centers for Disease Control and Prevention (CDC) for the latest information on the virus and guidelines for controlling transmission
• clean routinely and frequently touched surfaces and objects, including but not limited to, bathrooms, security desk areas, elevator banks, turnstiles, escalators, door handles, communal kitchens or pantries, bathrooms and the like
• offer materials, in multiple languages, to educate employees, visitors, vendors, delivery personnel and staff about proper hand hygiene and cough etiquette
• install hand sanitizer stations in high-traffic areas of the building
• advise any employees who may feel sick to limit face-to-face contact with others and to seek immediate medical help
• consider alternatives and safety protocols for large, public events held on the building property
• review your internal communications and preparedness plan and ensure that all building staff are ready, know their role in keeping the property and its guests safe, and are aware of all communication protocols
• follow Occupational Safety and Health Act (OSHA) requirements, set forth in Sections 13 and 14 of OSHA No. 1 of 2006, which impose various duties on the employer to ensure a safe and healthy work environment
• discuss human resource considerations such as screening employees that have traveled to areas where the virus has been reported and implementing protocols for dealing with a situation where an employee may be infected with the virus
• review leave policies and confirm compliance with legal requirements around mandatory quarantines
• consider ongoing communications with tenants and service providers to inform them of the steps you are taking to clean and sanitize the property and learn how they are addressing the outbreak with their employees and customers
• conduct risk assessment analysis and anticipate supply chain interruption 
• review any rights or remedies the property may have under policies of insurance, which may include coverage for business interruption
• consult with counsel about the COVID-19's impact on the property, contractual obligations and business operations

Answer. Subject to the caveat that I am not a First Amendment lawyer, here are my thoughts:

The First Amendment to the U.S. Constitution provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Section 8 of the Oregon Constitution provides:

No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.  (Emphasis added.)

How these two laws have been legally interpreted, and the scope of each one vis–à–vis the other, is beyond my skill-set.

First, there is only one statute in Oregon’s landlord-tenant law that addresses this issue, and it is broadly crafted to permit expression:

90.755 Right to speak on political issues; limitations; placement of political signs. 

(1) No provision in any bylaw, rental agreement, regulation or rule may infringe upon the right of a person who rents a space for a manufactured dwelling or floating home to invite public officers, candidates for public office or officers or representatives of a tenant organization to appear and speak upon matters of public interest in the common areas or recreational areas of the facility at reasonable times and in a reasonable manner in an open public meeting. The landlord of a facility, however, may enforce reasonable rules and regulations relating to the time, place and scheduling of the speakers that will protect the interests of the majority of the homeowners.

      (2) The landlord shall allow the tenant to place political signs on or in a manufactured dwelling or floating home owned by the tenant or the space rented by the tenant. The size of the signs and the length of time for which the signs may be displayed are subject to the reasonable rules of the landlord. [Formerly 91.925; 1991 c.844 §18; 1995 c.559 §40; 2009 c.816 §17] (Emphasis added.)

So as to political signs, it appears that pro- and anti-Trump signs are clearly protected. What about pro-life signs, which could be viewed as a political statement? Same question for gay rights. Confederate flags might be regarded as political, but I believe in this day and age of hypersensitivity, it has become viewed less as emblematic of southern heritage, and more as having racial undertones. In short, community management might have an easier chance of prohibiting the flag than a sign.

What is interesting in Oregon’s law is that the rights of expression, speech, and press, are modified by the clause “but every person shall be responsible for the abuse of this right.”  Again, I do not know how this law has been judicially interpreted, but clearly, it suggests that the freedom is balanced against an abuse of the right.

In this vein, ORS 90.740(4)(j) provides that one of a resident’s legal duties in a community is to:

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

So, my take, is the following:

• Each situation must be viewed on a case-by-case basis, depending not only upon the signage, but the demographics of the community itself. In other words, certain signs in certain communities may not be viewed as provocative or inflammatory, and therefore be permissible. 
• However, here’s the rub: All it takes is one person with a provocative sign that offends an entire community, to enlist the aid of the ACLU, and you may quickly confront the reality of the legal cost for protecting the “peaceful enjoyment” of the rest of the community.[1]

So in the final analysis, my belief is that the “peaceful enjoyment” language of ORS 90.740(4)(j), protecting the community’s residents as a whole, coupled with Oregon’s constitutional protection against abuse of the right of free speech, together provide a legitimate basis for prohibiting non-political signage that could be deemed offensive to the rest of the community. However, such proscriptions should only be broadly spelled out in management’s rules, rather than expressly deeming certain topics permissible, and others impermissible. For example:

“Residents shall not post on their spaces or homes, signs, emblems, flags, slogans, or similar expressions, which, by their nature, could be viewed as offensive or inflammatory to other residents, and thereby interfering with their peaceful enjoyment of the Community.”

However, if the signage relates to political candidates, campaigns, politicians, and legislation, etc., ORS 90.755 appears to give residents broad rights, subject only to the size of the signage and length of time it may appear.  Lastly, I would believe that the use of profane or vulgar images or text in political signs may be reasonably prohibited by management.

[1] This is why community management should carry sizeable liability insurance.

The most effective solution is getting good tenants in the first place. Screen each and every potential tenant for credit history, criminal convictions, and evictions. Set your application standards and stick to them (i.e., don't fall for any "hard luck" stories). There are certain restrictions on what may be considered in the evaluation process, so consult an attorney on the specifics. (NOTE: If you charge an application fee, you must provide applicants with written notice of your screening criteria, the amount of the screening charge, your application process, and the applicant's right to dispute the accuracy of any reported information.)

After you approve an application, make sure that the tenant signs a written rental agreement, rules, and any other rental documents before taking possession of the rental unit. While it is possible to establish a tenancy without any rental documents, it is always more difficult to handle potential disputes without written documentation. don't agree to any "informal" tenancy arrangements - they typically lead to disputes.

After the tenancy begins, be responsive to any complaints by the tenant concerning the condition of the rental. For example, send a handyman or contractor over to inspect and/or repair any complaints made by the tenant. While there are limits on what constitutes a "habitability" issue affecting the actual livability of the rental, err on the side of making repairs unless the repair issues become unreasonable.

Finally, treat your rental like the business that it is. If rent is due on the 1st of the month, then issue 72-hour nonpayment notices on the 8th of the month when rent is late, as allowed by Oregon law. Address tenancy problems (i.e., unauthorized occupants, pets, maintenance issues, etc.) as soon as you learn of them. While it might not be possible to avoid all tenant disputes, addressing problems as soon as they arise will greatly improve your legal position if you end up in court.

Mark L. Busch
Cornell West, Suite 200, 1500 NW Bethany Blvd
Beaverton, OR 97006
(503) 597 - 1309

mark@marklbusch.com

www.marklbusch.com

Answer:  Oregon House Bill 4213 prohibits residential evictions (including eviction notices) based on nonpayment of rent and other charges owed to the landlord that became due during the “emergency period.”  HB 4213 specifically defines the “emergency period” as beginning April 1, 2020 and ending on September 30, 2020.

Governor Kate Brown’s Executive Order No. 20-56 extended the eviction moratorium through the end of the year until December 31, 2020.  However, like HB 4213, the “nonpayment” period is specifically defined to mean payments that became due to the landlord during the period beginning on April 1, 2020 and ending on the extended date of December 31, 2020.

Both HB 4213 and EO 20-56 specificallyset April 1, 2020 as the starting point for the eviction moratorium. Any amounts that were owed before that date to the landlord are therefore notcovered by the eviction moratorium prohibitions.

In my opinion, you could lawfully serve a 72-hour rent nonpayment notice on these tenants requiring payment of their rent for January, February and March.  If they failed to pay the full amount due for those months by the 72-hour notice deadline, you could file an eviction case in court.

There are (of course) a few caveats. First, you or your attorney would likely need to educate the court with this analysis to allow the case to proceed. Second, you should probably expect an argument from the tenants or their attorney on this issue, but if the court follows the specific language in the regulations, you should prevail.  Third, it is possible the tenants could try to short-circuit the eviction by invoking the federal CDC eviction moratorium that is also on the books, but they would have to submit a sworn declaration stating that, among other things, they are unable to pay rent because they have lost income, employment, or suffered extraordinary medical expenses as a result of COVID-19.  It does not sound like any of these facts fit the couple you have described.

Obviously, you should consult with a knowledgeable attorney before you decide to pursue this eviction strategy.  Also be sure to check whether your county or local municipality may have enacted a broader moratorium that might cover the rent amounts due earlier in the year. And finally, you may want to consider simply suing the tenants in small claims court for these rent amounts instead of pursuing a full-blown eviction case.

Senate Bill 599 sets out an entirely new section of the ORLTA allowing tenants to use their dwellings as “family child care homes.” A landlord may not prohibit the use provided that the tenant has obtained the proper certification under ORS 329A.280 or ORS 329A.330, and has provided notice to the landlord of the tenant’s intent to operate a child care home.

Modifications. A landlord is permitted to require the tenant to pay in advance for costs of modifications necessary or desirable for the tenant’s use, certification or registration of the dwelling as a family child care home, even if it is not required of the landlord under ORS 90.320 or the rental agreement.

Prohibitions. A landlord may prohibit use as a family child care home if it will violate zoning restrictions or an association’s governing documents. Likewise, a landlord may prohibit any use which is not allowed under the rules of the Early Learning Council, the regulating body for in-home child care facilities.

Liability Protection. Family child care homes are not required to carry liability insurance unless the landlord specifically requires it. The landlord may require that the tenant running the child care home provide protection for the landlord, property owner or the association in the following manner:

• If uninsured: Child care provider must require that parents sign a document acknowledging that the landlord, owner and/or association is not responsible for harm to children or guests connected to the family child care home. This document also must acknowledge that the family child care home does not carry liability insurance for losses to their children or guests.
• If insured: Landlord may require that the child care home carry a reasonable surety bond or liability policy (in addition to renters insurance under ORS 90.222) covering the children and guests. The policy must provide coverage for injuries sustained related to negligence of the tenant or tenant’s employees, and the policy must name the landlord, property owner, or association as an additional insured.

Housing for Older Persons. The tenant may not operate a family child care home if the dwelling in question qualifies as housing for older persons under ORS 659A.421.

Question: We have had to file two consecutive FED Complaints against a resident. The day before the first appearance for each case, the resident tender the rent that was due, although he do not pay the court fees of $115.00. After two months of this, he owes us $230.00. He promises to repay this amount but does not. Now rent is due for January, 2012. We are sure the same thing will happen again. How can we collect the court fees?

Answer: I assume that when he tenders the rent, you accept it and report to the court that the case is to be dismissed. This means that any leverage you had to make the full payment, including court fees, has disappeared. You might consider one of the two following alternatives:

1. Since the 72 hours has already expired and you've had to file the FED complaint, you are not required to accept the rent unless he agrees to pay the court fees. Next time, if he declines, don't let the case be dismissed. Go to the regularly scheduled first appearance. If he shows up, tell the judge you'd gladly permit him to stay if he pays the filing fees. If he can't afford to pay it in one lump sum, negotiate a repayment plan (e.g. 50% next month and 50% the following month). Then have the judge put the agreement in a Stipulated Judgment of Restitution, which means that if he doesn't pay the sums do as scheduled, you can go back to court to have him evicted.

2. Under Oregon's "three strikes"law [ORS 90.630(8)-(10)], if a resident is issued three 72-hour notices within a rolling 12 month period, you can issue them a 30-day non-curable eviction notice, on or shortly after, the third strike. Then you can say to the resident that you will permit them to stay only on condition of payment of the outstanding court fees. Obviously, this is a pretty big hammer and if they can't pay the fees all at once, you should negotiate partial payments, similar to what I suggested above. However, this alternative would automatically not result in a "Stipulated Judgment of Restitution"(you would have to be in court to get that). For that reason, I prefer No. 1 over No. 2.

1. Question: When will the Bill go into effect, and what does that mean for 90-day rent increase notices issued in manufactured housing communities before the effective date?

Answer:  The effective date is September 1, 2025. It is not “retroactive” i.e., it cannot affect notices legally issued before then. So rent increase notices properly issued (i.e., delivered, attached and posted, or mailed) before September 1, 2025 will not be affected. However, rent increase notices issued on or after September 1, 2025 must comply with the new laws in every respect.

2. Question: What if I issued a rent increase for less than the current maximum increase cap in February 2025? Can I issue another one before the September 1, 2025 effective date so long as it does not exceed the current cap before HB 3054 becomes effective? 

Answer: ORS 90.600(1)(b) currently provides that a park landlord may not increase the rent more than once in any 12-month period. HB 3054 did not affect that law. In other words, once you issued a rent increase in any 12-month period, you cannot issue another one covering that same 12-month period. The only exception – which you should confirm with your own attorney – is if you issued a limited rent increase for only six months in February 2025, it would seem you could issue a second one for six months before September 1, 2025 and avoid any new regulations under HB 3054. But this is not legal advice; you must confirm with your own attorney.

3. Question: As a landlord, I own three homes in my community that I rent out to tenants. How will HB 3054 affect me?

Answer: HB 3054 amended ORS 90.324 to provide that (1) No later than September 30th of each year, the Oregon Department of Administrative Services (“DAS”) shall calculate the maximum annual rent increase percentage allowed for the following calendar year  as the lesser of Ten percent (10.00%) or  Seven percent (7.00%) plus the applicable CPI.

4. Question: Does HB 3054 apply to RVs or RV parks?

Answer:  RVs are subject to the general landlord-tenant law and are not subject to the manufactured housing statutes in ORS 90.505-.850. In other words, the laws that apply to all other tenants, e.g., those in apartment, rental homes/condominiums, etc. They are affected by HB 3054 as described in the Answer to Question No. 3, above.

5. Question: Does HB 3054 apply to marinas and floating home communities?

Answer:  Marina and floating home communities are subject to the same laws as in the manufactured housing statutes in ORS 90.505-.850.  In other words, on an after September 30, 2025 and each year thereafter, theOregon Department of Administrative Services (“DAS”) will calculate the maximum annual rent increasepercentage allowed for 2026 and thereafter.

6. Question: Will we have to use different MHCO rent increase notice forms?

Answer: Yes. It is Form 49. It has already been revised. Any rent increase notices issued on or after September 1, 2025 should use the new MHCO Form 49.

7. Question: Will HB 3054 apply to all Oregon parks?

Answer: Yes, but the size of the park now matters. For parks (and marina and floating home communities) with more than 30 spaces (or slips), rent increases will be capped at six percent (6.00%) and for those with 30or fewer spaces (or slips), they will be capped at the lesser of ten percent (10.00%) or seven percent plusCPI.

8. Question: Does HB 3054 apply to parks located in the City of Portland?

Answer:  If a Community is located within the City of Portland, a rent increase should not exceed 9.99% - as opposed to the 10% cap for parks with 30 or fewer spaces (or slips). So even though HB 3054 sets the cap at the lesser of ten percent (10.00%) or seven percent plus CPI. You do not want a total cap on rent to exceed 9.9% in Portland. A rent increase of 10.00% or more in the city of Portland can result in a landlord having to pay the resident’s “relocation assistance” of thousands of dollars. If your community is located within the city limitsof Portland, you should consult with your attorney before issuing a rent increase notice.

9. Question: Does HB 3054 have any exclusions to rent increase notices?

Answer:  Yes, they are generally the same as before but with the exception in bold below. The rent capcalculation does not apply if (1) the dwelling unit’s first certificate of occupancy was issued less than 15years before the date of the notice of rent increase; or (2) the dwelling unit is regulated or certified as affordable housing by federal, state or local government and it (a) does not increase the tenant’s portion ofthe rent, or (b) is required by the program eligibility requirements or (c) is due to a tenant’s change inincome, or (d) for a community of more than 30 spaces and complies with ORS 90.600(3)(c)(A) –(G).  Those provisions are detailed and should be reviewed separately.

10. Question: Are there any other major changes brought by HB 3054?

Answer:  Yes, there are three:

1.  Prior to HB 3054, the Oregon Legislature overlooked leases (i.e., “fixed term tenancies”). The result was that landlords using leases were not limited in their rent formulas (within reason at least) by the same caps as month-to-month tenancies. This new legislation corrects that oversight, and subjects rental increases in park leases to the same rent caps found in month-to-month tenancies.

Since the effective date of this Bill is September 1, 2025, landlords may wish to consider putting their new tenants on fixed term leases before then. This is not to suggest that the rent formulas should be open-ended without limits or guidelines. But a well- drafted rent formula based upon reasonable and objective criteria should survive attack. After all, before the caps, there were never any limits on rent increases (other than the existing good faith provision under ORS 90.130.) This is not legal advice. Members should check with their own legal counsel.

1.  Although the law has always provided that at the time that a landlord gives the prospective purchaser an application  they should also give them certain additional documents including “a list of any failures to maintain the space or to comply with any other provisions of the rental agreement, including aesthetic or cosmetic improvements….” The italicized text has been deleted, meaning that prior tenant notices of alleged violations based upon “aesthetic or cosmetic improvements” cannot be provided to the new tenant.

2. The Bill made a major change to ORS 90.680. It now provides that a landlord may not require that aselling tenant, prospective purchaser or purchaser must consent to the inspection of the interior of thehome or obtain an inspection of the interior of the home by a third party, as a condition of Landlord’s acceptance of the required notice of sale, approval of a sale, or approval of a new tenancy by thepurchaser.

Not having been present during the legislative drafting of this Bill, I cannot explain its rationale. I will attempt to find out more. But since I participated in the (now discontinued) landlord-tenant coalitions, I submit the following observation: ORS 90.740(4)(c) imposes upon tenants a duty to “Keep the dwelling or home, and the rented space, safe from the hazards of fire.” (Emphasis added.) This is a duty tenant owes to the landlord. So today when the home sells, if the owner had made dangerous non-code wiring alterations to its interior, those risks can be discovered by the landlord through a required inspection upon transfer. Then, prior to closing and possession, the tenant and prospective purchaser can reach agreement upon bringing the wiring up to code and averting electrical fires. This protects everyone. After this new law goes into effect, landlords should consider providing all prospective sellers and buyers with information about the importance of a professional inspections including an evaluation of code compliance for all electrical wiring and other fire risks. But such inspections should not be made a condition of tenant approval or consent to the sale.

Answer. ORS 90.531 - 90.543 consists of a series of statutes that permit landlords to convert utility charges from base rent to a program passing them on directly to residents. ORS 90.533 expressly permits garbage collection costs to be converted to a pass-through program. In summary, it provides as follows:

1. Unilateral Amendment. You must first unilaterally amend your rental or lease agreements to remove the cost of garbage collection from your base rent and have it billed to residents by your garbage provider. You do not need tenant consent to make this amendment.

1. 180-Day Notice. You must give not less than 180 days' written notice to each resident, before converting to a garbage pass-through billing program.

1. Reduction of Rent. You are required to reduce your base rent at the time of the first billing under the new program. The rent reduction may not be less than an amount reasonably comparable to the amount of the rent previously allocated to the garbage services averaged over at least the preceding twelve (12) months. Landlords may not convert to this program sooner than one year after giving notice of a rent increase, unless the rent increase is an automatic increase provided for in a fixed term rental agreement (i.e. a lease) entered into one year or more before the conversion.

1. Twelve Months' Garbage Billing Records. Before you may first bill the residents under the new program, you must provide them with written documentation from the garbage provider showing your cost for the service during at least the twelve (12) preceding months.

1. Prohibition on Subsequent Rent Raises. During the six months following your conversion to a garbage pass-through billing program, you may not raise the rent to recover any costs of conversion to the program.

1. Common Areas. At the same time you convert to the pass-through program, you may also unilaterally convert the billing for common areas to a pro rata method that divides the cost based on the number of occupied spaces in the facility. don't forget to address this in the unilateral amendment!