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Answer: There are several issues here. One, you've accepted rent from the occupant for the last several months. For all intents and purposes, you have accepted him as a tenant - even though he is not there on a written rental agreement and even though you have no criminal background check on him. Even if your rules prohibit subleasing, that too, has been waived. In other words, all of the breaches you could have enforced against him and/or the tenants who subleased, have been waived and are now unenforceable. Here are the rules on waiver that apply in this situation [ORS 90.412]. While they are of no help in this situation, they may be helpful in the future. A landlord waives the right to terminate a rental agreement for a particular violation of the rental agreement or of law if the landlord: - During three or more separate rental periods, accepts rent with knowledge of the violation by the tenant; or - Accepts performance by a tenant that varies from the terms of the rental agreement. - A landlord has not accepted rent for purposes of subsection (2) of this section if: _ Within 10 days after receipt of the rent payment, the landlord refunds the rent; or _ The rent payment is made in the form of a check that is dishonored. - A landlord does not waive the right to terminate a rental agreement for a violation under any of the following circumstances: _ The landlord and tenant agree otherwise after the violation has occurred. _ The violation concerns the tenant's conduct and, following the violation but prior to acceptance of rent for three rental periods or performance, the landlord gives a written warning notice to the tenant regarding the violation that: - Describes specifically the conduct that constitutes the violation, either as a separate and distinct violation, a series or group of violations or a continuous or ongoing violation; - States that the tenant is required to discontinue the conduct or correct the violation; and - States that a reoccurrence of the conduct that constitutes a violation may result in a termination of the tenancy pursuant to ORS 90.392, 90.398, 90.405 or 90.630. _ The tenancy consists of rented space for a manufactured dwelling or floating home, and the violation concerns: - Disrepair or deterioration of the manufactured dwelling or floating home; - A failure to maintain the rented space; - The termination is under ORS 90.396 [24-hour notices]. _ The landlord accepts: - A last month's rent deposit collected at the beginning of the tenancy, regardless of whether the deposit covers a period beyond a termination date; - Rent distributed pursuant to a court order releasing money paid into court; or - Rent paid for a rent obligation not yet due and paid more than one rental period in advance. - For a continuous or ongoing violation, the landlord's written warning notice remains effective for 12 months and may be renewed with a new warning notice before the end of the 12 months. - A landlord that must refund rent shall make the refund to the tenant or other payer by personal delivery or first class mail. The refund may be in the form of the tenant's or other payer's check or in any other form of check or money. The most important thing you should do at this point is to try to determine if this occupant is a sexual predator. Oregon laws were revised a few years ago to provide that if an occupant is determined to be a predatory sex offender under ORS 181.585 to 181.587, you may unilaterally issue him a 30-day notice to vacate. [See, ORS 90.630(1)(c)]

• The landlord accepts:
  • A last month's rent deposit collected at the beginning of the tenancy, regardless of whether the deposit covers a period beyond a termination date;
  • Rent distributed pursuant to a court order releasing money paid into court; or
  • Rent paid for a rent obligation not yet due and paid more than one rental period in advance.

• For a continuous or ongoing violation, the landlord's written warning notice remains effective for 12 months and may be renewed with a new warning notice before the end of the 12 months.
• For a violation concerning the tenant's failure to pay money owed to the landlord, the landlord's written warning notice under subsection ORS 90.412(4)(c) remains effective for 12 months from the date of the tenant's failure to pay the money owed.
• A landlord that must refund rent shall make the refund to the tenant or other payer by personal delivery or first class mail. The refund may be in the form of the tenant's or other payer's check or in any other form of check or money.

Acts not constituting waiver of termination of tenancy. If a notice of termination has been given by the landlord or the tenant, the following acts do not waive the landlord's right to terminate on the notice and do not reinstate the tenancy:

• Except in the case of issuance of a nonpayment of rent notice under ORS 90.394, the acceptance of rent if:
  • The rent is prorated to the termination date specified in the notice; or
  • The landlord refunds at least the unused balance of the rent prorated for the period beyond the termination date within 10 days after receiving the rent payment.
• Except in the case of termination for cause under ORS 90.392 (termination for cause), 90.398 (termination for drug/alcohol violations), 90.405 (unpermitted pets), 90.630 (termination of MHP tenancy by landlord) or 90.632 (termination for physical condition of home in MHP), the acceptance of rent for a rental period that extends beyond the termination date set forth in the notice, if the landlord refunds at least the unused balance of the rent for the period beyond the termination date within 10 days after the end of the remedy or correction period described in the applicable notice.
• If the termination is for cause under ORS 90.392 (termination for cause), 90.398 (termination for drug/alcohol violations), 90.405 (unpermitted pets), 90.630 (termination of MHP tenancy by landlord) or 90.632 (termination for physical condition of home in MHP) and eviction proceedings have commenced to recover possession of the premises based on the termination:
  • The acceptance of rent for a period beyond the expiration of the notice of termination during which the tenant remains in possession if:
    • The landlord notifies the tenant in writing in (or after the service of) the notice of termination for cause that the acceptance of rent while an action for possession is pending will not waive the right to terminate under the notice; and
    • The rent does not cover a period that extends beyond the date the rent payment is accepted.
  • Service of a nonpayment of rent termination notice under ORS 90.394.
• The following acts do not waive the right of the landlord to terminate on a notice of termination given by the landlord or the tenant and do not reinstate a tenancy:
  • Acceptance of a last month's rent deposit collected at the beginning of the tenancy, whether or not the deposit covers a period beyond a termination date.
  • Acceptance of rent distributed under a court order releasing money that was paid into the court as provided under ORS 90.370 (1) (Rent tender provisions when tenant files a counterclaim)
  • Acceptance of rent paid for a rent obligation not yet due and paid more than one rental period in advance.
• When a landlord must refund rent, it shall be made to the tenant or other payer by personal delivery or first class mail and may be in the form of the tenant's or other payer's check or in any other form of check or money.

Effect of acceptance of partial rent. A tenant's duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the terms of the rental agreement. A landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely.

• A landlord may accept a partial payment of rent.
  • The acceptance of a partial payment does not constitute a waiver of the landlord's right to terminate the tenancy under ORS 90.394 (Termination of Rental Agreement for Failure to pay Rent) of the balance of the rent owed if the following rules below for partial payments are followed.
• A landlord and tenant may by written agreement provide that monthly rent shall be paid in regular installments of less than a month pursuant to a schedule specified in the agreement. Such agreed-upon installment rent payments are not "partial payment of rent"
• Acceptance of a partial payment of rent waives the right of the landlord to terminate the tenant's rental agreement for nonpayment of rent unless:
  • The landlord accepted the partial payment of rent before the landlord gave a nonpayment of rent termination notice based on the tenant's agreement to pay the balance by a time certain and the tenant does not pay the balance of the rent as agreed;
  • The landlord's notice of termination is served no earlier than it would have been permitted under ORS 90.394 (Termination of Rental Agreement for Failure to pay Rent) had no rent been accepted; and
  • The notice permits the tenant to avoid termination of the tenancy for nonpayment of rent by paying the balance within 72 hours (or 144 hours) or by any date to which the parties agreed, whichever is later; or
  • The landlord accepted a partial payment of rent after giving a nonpayment of rent termination notice and entered into a written agreement with the tenant that the acceptance does not constitute waiver. This agreement may provide that the landlord may terminate the rental agreement and thereafter file for eviction without serving a new non-payment of rent notice if the tenant fails to pay the balance of the rent by a time certain.
• Application of a tenant's security deposit or prepaid rent to an obligation owed to a landlord in foreclosure under ORS 90.367 does not constitute a partial payment of rent.
• Notwithstanding any acceptance of a partial payment of rent pursuant to the above rules, the tenant continues to owe the landlord the unpaid balance of the rent.

Answer: ORS 90.100 (Definitions) provides as follows:

(13)"Essential service" means: (b) For a tenancy consisting of rental space for a manufactured dwelling, floating home or recreational vehicle owned by the tenant or that is otherwise subject to ORS 90.505 to 90.850: (A)Sewage disposal, water supply, electrical supply and, if required by applicable law, any drainage system; and (B)Any other service or habitability obligation imposed by the rental agreement or ORS 90.730, the lack or violation of which creates a serious threat to the tenant's health, safety or property or makes the rented space unfit for occupancy. (Emphasis added.)[1]

Bottom line:Providing phone service is not defined as an "essential service" under Oregon's landlord-tenant law, and therefore is not required to be provided. Since most people have cell phones, I see little inconvenience in not having a land line - with the exception of the infirm or elderly, who may not have cell phone service. I would hope that for such residents, neighborhood efforts by other tenants would possibly provide welfare checks, since a phone line could be a life line in some instances.

The only exception to the above would be if the park's rental or lease agreement provided for phone service. In such case, the absence of it could arguably be construed as '_a serious threat to the tenant's health, safety or property... ."

[1]ORS 90.730 (Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition) provides:

(1) As used in this section, "facility common areas" means all areas under control of the landlord and held out for the general use of tenants.

(2) A landlord who rents a space for a manufactured dwelling or floating home shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition. The landlord does not have a duty to maintain a dwelling or home. A landlord's habitability duty under this section includes only the matters described in subsections (3) to (6) of this section.

(3) For purposes of this section, a rented space is considered unhabitable if it substantially lacks:

(a) A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord;

(b) If required by applicable law, a drainage system reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;

(c) A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord;

(d) An electrical supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord;

(e) A natural gas or propane gas supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the gas supply system can be controlled by the landlord, if the utility service is provided within the facility pursuant to the rental agreement;

(f) At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

(g) Excluding the normal settling of land, a surface or ground capable of supporting a manufactured dwelling approved under applicable law at the time of installation and maintained to support a dwelling in a safe manner so that it is suitable for occupancy. A landlord's duty to maintain the surface or ground arises when the landlord knows or should know of a condition regarding the surface or ground that makes the dwelling unsafe to occupy; and

(h) Completion of any landlord-provided space improvements, including but not limited to installation of carports, garages, driveways and sidewalks, approved under applicable law at the time of installation.

(4) A rented space is considered unhabitable if the landlord does not maintain a hazard tree as required by ORS 90.727.

(5) A vacant space in a facility is considered unhabitable if the space substantially lacks safety from the hazards of fire or injury.

(6) A facility common area is considered unhabitable if it substantially lacks:

(a) Buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

(b) Safety from the hazards of fire;

(c) Trees, shrubbery and grass maintained in a safe manner;

(d) If supplied or required to be supplied by the landlord to a common area, a water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord; and

(e) Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of commencement of the rental agreement and for which the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal.

(7) The landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:

(a) The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;

(b) The agreement does not diminish the obligations of the landlord to other tenants on the premises; and

(c) The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated. [1999 c.676 _6; 2007 c.906 _40; 2011 c.503 _10; 2013 c.443 _2; 2015 c.217 _7]

Answer: ORS 90.532 (3) provides as follows: Except as allowed by subsection (2) of this section for rental agreements entered into on or after January 1, 2010, a landlord and tenant may not amend a rental agreement to convert water or sewer utility and service billing from a method described in subsection (1)(b)(C)(i) [i.e. where the charge is included in the base rent] *** to a method described in subsection (1)(b)(C)(ii) [i.e. where the charge is billed separately from base rent and apportioned among the tenants on a pro rata basis as measured by a master meter]. The exception covered in subsection ORS 90.532(2) provides as follows: A landlord may not use a separately charged pro rata apportionment billing method: (a) For water service, if the rental agreement for the dwelling unit was entered into on or after January 1, 2010, unless the landlord was using a separately charged pro rata apportionment billing method for all tenants in the facility immediately before January 1, 2010. (b) For sewer service, if it is measured by consumption of water and the rental agreement was entered into on or after January 1, 2010, unless the landlord was using a separately charged pro rata apportionment billing method for all tenants in the facility immediately before January 1, 2010. Translating this to plain English, here is my take: - For rental agreements entered into on or after January 1, 2010 you may not convert water or sewer charges from an in-rent method to a pro rata billing method except as follows: _ Water service: If the rental agreement was entered into on or after January 1, 2010, unless you were using a separately charged pro rata apportionment billing method for all 180 spaces immediately before January 1, 2010. _ Sewer Service: If sewer service is measured by consumption of water and the rental agreement was entered into on or after January 1, 2010, you may not convert from an in-rent method to a pro rata method, unless you were already using a separately charged pro rata apportionment billing method for all 180 spaces immediately before January 1, 2010. - Garbage service: You may not convert from an in-rent method to a pro rata billing method unless the pro rata apportionment is based upon the number and size of the garbage receptacles used by the tenant. There does not appear to be any time frame limitation on this rule Pursuant to ORS 90.534 [Allocated charges for utility or service provided directly to space or common area], if a written rental agreement so provides, you may use a pro rata billing method with a master meter and require tenants to pay you a utility or service charges (e.g. electrical and natural gas) that has been billed to you or provided directly to the tenant's space or to a common area. However, you may not unilaterally amend an existing rental agreement to convert utility and service billing from an in-rent billing method to a pro rata billing method. It appears you could use the pro rata billing method (other than sewer and water) per above rules, only on a going forward basis with new residents. Conclusion. This is the best I can tell you. It is not legal advice, and based only upon my interpretation of the statutes which are quite complex. It appears that yours is a difficult situation in which water/sewer submetering will not actually help. With the exception of garbage service, there is no easy answer. However, upon closer evaluation by your attorney, perhaps you may be able to figure out a work-around solution. Good luck!

Answer: As to whether you or the resident is responsible for the condition of the ground upon which the home sits, it depends on whether the infestation existed at the time of commencement of the tenancy. If “yes,” the it’s your responsibility to abate; if “no” then it’s the tenant’s responsibility.  Here is a summary of the applicable statute.  I have highlighted that portion of the law which applies to your issue:

ORS 90.730 [Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition.] provides in relevant part:

• A landlord who rents a space for a manufactured dwelling shall at all times during the tenancy maintain the rented space, vacant spaces in the facility and the facility common areas in a habitable condition.
• The landlord does not have a duty to maintain a dwelling or home.
• A landlord’s habitability duty includes only the following:
  • A sewage disposal system and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the sewage disposal system can be controlled by the landlord;
  • If required by applicable law, a drainage system reasonably capable of disposing of storm water, ground water and subsurface water, approved under applicable law at the time of installation and maintained in good working order;
  • A water supply and a connection to the space approved under applicable law at the time of installation and maintained so as to provide safe drinking water and to be in good working order to the extent that the water supply system can be controlled by the landlord;
  • An electrical supply and a connection to the space approved under applicable law at the time of installation and maintained in good working order to the extent that the electrical supply system can be controlled by the landlord;
  • At the time of commencement of the rental agreement, buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;
  • Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of commencement of the rental agreement, and for which the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal; and
  • Completion of any landlord-provided space improvements, including but not limited to installation of carports, garages, driveways and sidewalks, approved under applicable law at the time of installation.
•  A rented space is considered unhabitable if the landlord does not maintain a hazard tree as required by ORS 90.727. 
• A vacant space in a facility is considered unhabitable if the space substantially lacks safety from the hazards of fire or injury.
• A facility common area is considered unhabitable if it substantially lacks:
  •  Buildings, grounds and appurtenances that are kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;
  • Safety from the hazards of fire;
  • Trees, shrubbery and grass maintained in a safe manner; and 
  • If supplied or required to be supplied by the landlord to a common area, a water supply system, sewage disposal system or system for disposing of storm water, ground water and subsurface water approved under applicable law at the time of installation and maintained in good working order to the extent that the system can be controlled by the landlord.
•  Note that the landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:
  • The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;
  • The agreement does not diminish the obligations of the landlord to other tenants on the premises; and 
  • The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated.[1]

The term “vermin” is defined as:  “Small insects and animals (such as fleas or mice) that are sometimes harmful to plants or other animals and that are difficult to get rid of.” [http://www.merriam-webster.com/dictionary/vermin] That’s a pretty broad definition, and I’m going to assume that “vermin” include ants.  So the question is, was this condition one that existed at the commencement of the tenancy?  If the resident had been at the space for years and never complained until now, I suspect they [or their exterminator] would have a tough time establishing when the problem first occurred.  As you know, pests come and go; they could be seasonal, weather related, food related, hygiene related, etc.

Chances are that if one resident has ants, others may as well.  Had the resident come to you beforehiring the exterminator, I would have suggested that you find out how widespread the problem was, and if it was prevalent throughout the community [or a specific area within the community]perhaps work out some cost-sharing arrangement along with a periodic maintenance schedule to eradicate the problem. That was not done here.   

However, good community relations suggests that you find out the breadth of the problem, and if it affects several residents, discuss a solution with all of them that works for your pocketbook, and the residents’ budget. Whether you pay for the exterminator for one resident, might set a bad precedent, since it could encourage others to do the same.  That’s why you want to find out the scope of the problem.  

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

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

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

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

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

Answer:

Please note revision from last week's article: The cities of Portland and Milwaukie, Oregon have passed local ordinances that require 90-day no-cause notices regardless of the length of the tenancy. Although of arguable legality, this would only affect RV parks located within those two cities.

Both tenants appear to be violating MHCO Form 80, Section 12 D, which prohibits any person not listed in the tenant's rental application from occupying the RV in the park. "Occupy" means living in the RV more than 7 days (consecutive or nonconsecutive) in any calendar year. It is important to act quickly once you learn of an unauthorized occupant to avoid any waiver issues.

In the first situation, it seems like it would be best to simply issue a no-cause tenancy termination notice to your tenant. The unauthorized woman is already causing problems and there is no need to give her a chance to become an approved tenant. The no-cause notice would require them both to vacate. If not, you could file an eviction case.

An RV tenancy (unlike a manufactured home tenancy) can be terminated with a no-cause notice if the tenancy is month to month. If the tenant has been in the park less than a year, the no-cause notice period can be 30 days. After the first year of tenancy, the notice period must be at least 60 days. Use MHCO Form 43C (30/60 Day Notice to Vacate - No Cause).

(NOTE: The cities of Portland and Milwaukie, Oregon have passed local ordinances that require 90-day no-cause notices regardless of the length of the tenancy. Although of arguable legality, this would only affect RV parks located within those two cities.)

You could take the same approach in the second situation, although it sounds like perhaps you would like to give this tenant an opportunity to comply. I would recommend that you speak with the tenant and explain that unless the boyfriend fills out an application for a background check, the park will have to issue a no-cause tenancy termination notice (just like in the first situation). If he complies and passes the background check, he must sign the rental agreement as a co-tenant (as required by MHCO Form 80, Section 12 D).

A typical twist on some of these scenarios is that the occupant passes the criminal/eviction background check, but fails the credit check. In such case, you would be perfectly within your rights under MHCO Form 80 to insist that the occupant vacate. However, you would also have the option of allowing the occupant to stay by signing a Temporary Occupant Agreement (MHCO Form 25). This would give you the flexibility to allow the occupant to stay, but with the requirement that he/she vacate if the tenant's tenancy ends.

Answer. There is no such form. Perhaps there should be. But first, let's address some threshold issues, such as:

• Who owns the structure?
• Who has the duty to maintain it?
• What happens to it when the tenant vacates the space?
• Who would likely be held liable for injuries to persons/property using the structure?

If the structure was there when the resident first rented or leased the space, there isn'tmuch question but that the landlord "owns" it, if it remains there when the space is re-rented or re-leased. Although most rental/lease agreements and rules require the resident to "maintain" the space, in most instances, the text of these provision generally apply to landscaping-type activities. If the structure is expressly identified in the park documents, and allocates maintenance responsibility to the resident, then the issue is clearer. But it is my opinion that if the documents are silent about park-owned structures on the space, the duty to maintain, paint, etc., lies with the landlord. Why? Because the landlord drafted or selected the documents for the resident to sign, and accordingly, could have delegated the responsibility in whatever manner he/she saw fit. Having failed to do so, means that the agreement or rule will most likely be construed most strictly "against the drafter" - i.e. to the landlord.

Clearly, if the structure was on the space at the inception of the tenancy (therefor presumptively belonging to the landlord), when the resident departs, it would remain there. Similarly, if some liability occurred, it would fall on the landlord, unless it was from an event caused by the resident.

For example, say there is a storage shed located on the space at the start of the tenancy, and nothing is said in the park documents about maintenance responsibility. The resident uses the shed to store family items, including old photos and collectibles. Unbeknownst to the resident, the shed is not completely water resistant, and over the course of the winter, they are destroyed. Unless there is some evidence the resident knew about the leakage and did nothing to protect their belongings, this is likely a landlord liability.

Is this an instance in which the landlord could protect themselves by having a release of liability agreement saying that the resident assumes all responsibility for destruction or loss of any valuables stored in the shed? Possibly, but not absolutely. In other words, the more specific the agreement was, the better the chances are it would be enforced to the benefit of the landlord. But a simple statement saying that the resident assumes all responsibility for the contents stored in the shed, might not go far enough. Remember, absent the resident's duty to maintain the shed, if the landlord has the maintenance responsibility, management is arguably somewhat responsible for making sure that the shed is watertight - at least that's the argument the resident's attorney would make. So how can the landlord, who has the duty to maintain the shed, abdicate responsibility for not maintaining it in a secure manner?

Accordingly, to have a more enforceable release agreement, I submit that landlords should also have an agreement providing that: (a) landlord does not have a duty to maintain, inspect, or secure it; (b) landlord does not warrant or guarantee that the shed is waterproof, or free from mold and mildew; (c) before use, the resident should assure himself/herself that it is suitable for storage of the specific contents intended to be stored there; and (d) that the resident covenants and agrees to maintain the exterior and interior of the shed for the duration of the tenancy. Only then can you expect a full release and hold harmless clause to be effective, since by signing, the resident is now making an informed decision about the scope of responsibilities under the agreement going forward.

So the take-away here is that if you have not addressed these issues for park-owned structures in the lease, rental agreement and/or rules, you should do so upon turnover of the space. Until then, it would likely be difficult to shift responsibility onto a resident, when it was not expressly bargained for at the inception of the tenancy.

Similarly, even though a resident builds the structure, you may want to address these issues in a separate written agreement before the structure is built. In addition, you want to make sure that the construction of a tenant-built structure conforms to all applicable building codes and ordinances, including, where applicable, the taking out of one or more building permits. And if the resident hires a contractor, you will want to use MHCO Form No. 52.

And importantly, you will want to address whether the resident has a duty to remove it upon sale of the home. Alternatively, you can provide that the landlord reserves the right to make that decision if/when the resident who built it gives notice of intent to sell or remove the home. And if it stays, you'll want to have an agreement with the new resident, addressing the issues described above.

Lastly, if the structure is something built for children to play on, e.g. swing sets, ladders, slides, etc., I strongly recommend that you require the resident who built it, take it with them. Under no circumstances do you want to lease or rent space to another resident with this apparatus there. It creates too much liability for management, and even if it remained after a resident left, I would remove it before permitting possession by new residents with small children.

Answer: First, please understand that Oregon law does not directly deal with this - and neither is it addressed in most rental/lease agreements, including MHCO's. So my responses are based upon my opinion alone. Until an appellate court rules on these issues - which is unlikely, since most such cases are never appealed - the best we can do is speculate. My answers are in italics below.

1. Do we write a new lease for the remaining resident or keep the old lease with both residents on the lease? I think I would prefer to see a new lease signed by the remaining resident - even if title remains in both their names. That way, the ex-spouse cannot argue that he or she has a right of occupancy a year or two down the road, when they patch things up, or one moves out and the other moves back in. A new lease would require than any new occupants be qualified all over again. Note that if the lease is changed into the name of the remaining resident, the ex-spouse would certainly have no liability for space rent going forward.

2. Can we legally keep the resident that moved out, responsible for the lease after a divorce and separation of assets? Technically, yes. Neither the divorce decree nor the parties themselves can - without your consent - alter their joint legal duties under a lease they both signed. [This situation is not dissimilar to spouses jointly signing their mortgage and then divorcing; they both remain liable under the mortgage, even though one vacates the home.] The best a divorce court can do is to make the occupying ex-spouse primarily responsible for the rent and give indemnity rights to the non-occupying ex-spouse in case she or he end up having to pay for unpaid rent that should have been paid by the occupying ex-spouse.

3. Do we rescreen the remaining resident to see if he/she qualifies on their own? I have a visceral reaction to doing so - if they did not pass the credit requirements, then what? Deny them the right to stay in the community in which they have lived for a number of years? Kick them out without waiting to see whether they can - or will make the payments? That is like punishing the remaining ex-spouse for being divorced. Remember, the occupying ex-spouse will likely be the custodial parent, if children are involved. The non-custodial parent will likely have some child support obligation, which would then make the custodial parent's individual credit score less important. The same may be said even if there are no children; there may be a spousal support obligation by the non-occupying ex-spouse. It seems to me that it will become clear soon enough, whether the occupying ex-spouse can or will make the space rental payments, independent of what their current credit score may be.

4. If we do rescreen the remaining resident and he/she fails the credit or criminal background, what are our options? Before you re-screen, re-read my answer to Question No. 3 above. If the lease agreement or rules do not address the possibility of spouses divorcing - and I have never seen any that do - the ultimate decision on whether you may re-screen could be left up to a judge. I submit that judges do not like to evict people out of their homes unless there is a compelling reason to do so. A case in which a resident is being evicted for no reason other than that they no longer meet the credit criteria - with no evidence that they are in default under the lease or rules - would be a very difficult sell to most judges. It is unlikely that you would prevail. I compare this situation to requiring a resident to be re-screened upon a job loss or death of a spouse. In cases of such unplanned events occurring after residents have been approved, I suggest that you let the situation play itself out. If a resident cannot afford to pay the space rent, you will then have sufficient cause to evict. But to try to evict because you doubt the ability of the resident to pay rent in the future, is premature and likely to fail.

5. Who owns the security deposit or pre-paid rent? That depends upon whether you have the remaining resident sign a new lease. If a new lease is signed, you could issue a refund check to both of them under the first least, and require the remaining occupant to pay a new deposit under the new lease. It would be preferable, however, to see if they could agree to authorize you to leave the existing deposit in place, but permitting you to refund it, if appropriate, to the remaining occupant at the end of his/her tenancy. If no agreement can be reached, simply hold the deposit until expiration of the tenancy by the occupying non-spouse, and then, if a refund is in order, make the check out to both of them.

Answer: You are right that it can't continue - this is your business and you need to treat it as a business. However, there is a chance that you can give this tenant an opportunity to redeem himself, yet still protect your interests as well.

The first step is to give the tenant a 72-hour rent nonpayment notice. Use MHCO Form 82, fill it in following the directions on the form, and serve it on the tenant. If the tenant pays the rent by the 72-hour notice deadline, then life goes on and the tenancy continues. If not, you should file an eviction case at your county courthouse.

The court clerk will have several "check the box" forms that you can use to file an eviction - but be sure to bring along several copies of the 72-hour notice that you will need to attach to the eviction complaint. After you file the paperwork and pay the filing fee, you can then have the sheriff serve the eviction summons and complaint. The court clerk will be able to show you to the sheriff's office to have them serve the paperwork.

The court clerk will set a "1st court appearance hearing" when you file the eviction complaint. Both sides need to show up at this hearing. If the tenant doesn'tappear, then you win automatically and get a judgment entitling you to an eviction by the sheriff. The court clerk can give you the paperwork to finish that process.

If the tenant does show up, you will get a chance to negotiate a "stay and pay" agreement that the court will sign off on as an enforceable court order. (Most courts will have a form that you can use for this agreement.) Under Oregon law, the payment agreement can and should include: (1) All past-due rent; (2) late fees; (3) unpaid utilities; (4) court costs; (5) attorney fees (if any); and, (6) any other unpaid charges. The payment agreement can extend for up to six months, with payments made at monthly intervals or any other schedule that both sides agree on. The agreement can also include the next three regular monthly rent payments, sort of a "probationary period" to make sure the tenant gets back on track.

If the tenant complies with the payment terms, the tenancy continues and the court will automatically dismiss the eviction case after the payment agreement expires. If the tenant misses any payment, then you will file a "declaration of noncompliance" with the court and finish the eviction process.

These "stay and pay" agreements are very useful to my landlord clients and I use them regularly. They give you an opportunity to keep good tenants that may have temporarily fallen on hard times, but also keep open your eviction options.

As the landlord, you will also need to appear in court unless you have an attorney or other agent (such as a property manager) appear in court at the "1st appearance hearing." This hearing is usually set 8 days after the FED is filed. The purpose of the hearing is to see whether the parties can work out a payment plan, move-out agreement, or other arrangement. If not, the case will be set for trial.

If you are unable to settle the case at the first appearance hearing, by law the trial must be scheduled within 15 days from the 1st appearance hearing. Sometimes, the parties or the court will delay the trial beyond this time frame, but most cases move quickly. This leaves little time for preparation, meaning it is important to have your witnesses, exhibits, and trial arguments ready to go.

You do not necessarily need an attorney for court appearances, but you will increase your chance of success if you do. The eviction statutes are very technical, and most people aren't familiar with courtroom procedures. You will especially be at a disadvantage if the RV tenant has an attorney. If your case gets to the point of a trial, it is usually worth it to hire an attorney.