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Answer. This is not an issue under ORS 90.632, which relates to damage and deterioration of the home. In fact, this statute indirectly validates the right of the structures to be on the space, which you are contesting, since portions were built without permission, in violation of local ordinances, and contrary to the terms of the rental agreement. Moreover, ORS 90.632 does not allow the landlord to require removal - just repair.

This is a violation for which you would normally use a 30-day curable notice of termination. ORS 90.630(1)(a) (Termination by landlord; causes; notice; cure; repeated nonpayment of rent), which provides for the issuance of a 30-day termination notice if the resident:

• Violates a law or ordinance related to the tenant's conduct as a tenant;
• Violates a rule or rental agreement provision related to the tenant's conduct as a tenant and imposed as a condition of occupancy.

Subsection (4) provides that:

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.

However, in this particular case, the issue is whether you (and your predecessor) waived the right to terminate the tenancy because you accepted rent after you had knowledge of the violation. In summary, 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.[1]
• 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 (termination of non-MHP tenancies), 90.398 (termination for drug/alcohol violations), 90.405 (unpermitted pets), 90.630 (termination of MHP tenancy by landlord).
  • 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].

I do not believe any of the above exclusions apply to your situation, and on its face, there is an argument that by accepting the rent you permitted the structures to be there. See, ORS 90.412 and ORS 90.414.

However, permitting the structures, and permitting their violation of the building codes, etc., are two different things. You don't have the power to permit the law violations. I view the violations of the building codes as something that is a "continuing violation", and something you can likely still treat as a violation. 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.

You should issue a warning notice, identifying the various code violation, (e.g. work done without permits and work done not to code). Then give the tenant a fixed period to go obtain the necessary permits and provide proof that the work was done to code. The "proof" would be through the building department who would inspect and pass.

Note: you have to be careful that whoever the resident uses (they should be CCB licensed and bonded) knows that you are not responsible for payment of any construction liens for unpaid work.

If you cannot get compliance with the warning notice, then give him a 30-day curable notice under ORS 90.630, identifying the violations relating to the failure to get the work permitted and not complying with the building code. Give him a fixed period to complete, e.g. 30 - 45 days, during which time you should not accept any rent. If he does not comply, then you could file your eviction.

Alternatively, if you can do so, you may consider speaking with the resident about voluntarily removing the structures. However, if push came to shove, they were approved long ago, so I think it would be a difficult argument to now use the existence of the structures as the basis of a 30-day notice of termination under ORS 90.630. If you can reach agreement, fine. If not, the continuing violation of the code violations are your best bet under ORS 90.630. Be sure to confer with your own legal counsel before proceeding, however.

[1] However, a landlord has not "accepted rent" if within 10 days after receipt, the landlord refunds the rent, or the rent payment is made in the form of a check that is dishonored.

When any existing resident intends to sell their manufactured home the resident must do the following:

1. Give the landlord a written 10-day notice of their intent to sell their manufactured home. (Note: The 10 days will run parallel with the 7 day application process - i.e. if the resident notifies the landlord of intent to sell the home and does not give the 10 day notice, then the application process time to approve or reject will take 10 days rather than 7 days.)
2. The existing resident must advise the prospective purchaser that they have to fill out an application with the landlord and be approved.
3. Do not move anyone into the manufactured home that has not been approved through the tenant screening and approval process.

If you are aware of a sale and do not have the purchaser fill out an application, or fail to advise the seller and prospective purchaser in writing that the application has been rejected within 7 days after they fill out the application, then the purchaser can move into the mobile home under the same condition of the rental agreement of the seller. Basically, they assume the existing rental agreement you have with the seller of the manufactured home.

If a prospective tenant refuses to provide you with the necessary information for you to qualify them, then it is an automatic denial of the applicant.

It is important that an application is filled out and you check out the person carefully. You should check them out the same as you do any prospective resident. You do not have to approve the person just because they are buying an existing home in the park. If they have a bad credit or rental history, they can be refused as a prospective tenant. This does not necessarily kill the sale of the mobile home. They can still purchase the home, they just cannot keep it in the park. You need to provide a written rejection to both the seller and prospective purchaser within 7 days. You need to advise them why they were not accepted. If you denied them for credit reasons, give the applicant the name and phone number of the company who provided you with the report. Advise the applicant that they can call them if they have any questions regarding the report.

It is important that you advise anyone that has a "For Sale" sign on their manufactured home that they do the three things listed at the beginning of this section. Failure by the prospective resident to fill out an application or the landlord's failure to advise them that they do not qualify can be a very costly mistake in the event they move in and then you give them notice. It makes for ill feelings for everyone involved.

If a resident sells their home and the new owner of the home has not filled out an application prior to moving into the home, you do not need to accept them as a resident. You have no contract with them and you can request them to remove the home from the park. DO NOT ALLOW PROSPECTIVE TENANTS TO MOVE IN BEFORE THE SCREENING PROCESS HAS BEEN COMPLETED, AND THE APPLICANT HAS BEEN APPROVED AND SIGNED, AND RECEIPTED FOR THE STATEMENT OF POLICY, RULES AND REGULATIONS AND RENTAL AGREEMENT. DO NOT ACCEPT RENT FROM ANYONE THAT YOU HAVE NOT APPROVED TO LIVE IN THAT HOME. If you accept rent before you qualify them then you may have established them as a tenant. Simply tell them that you cannot accept the rent until they fill out an application and are accepted by the landlord. DO NOT HAVE ANYONE SIGN A RENTAL AGREEMENT UNTIL YOU HAVE RUN CREDIT, RENTAL AND CRIMINAL CHECKS ON THEM AND THEY HAVE BEEN ACCEPTED. If any of the reports come back unfavorable there is nothing you can do about it because you have established them as a tenant by signing the agreement/lease. 

Answer:  This is a very broad question, which is why the answer will have to be general. What follows are some of the major issues that occur. In all cases, the best protection for Management is to make sure these issues are addressed either in the Rental Agreement or the Rules – and then make sure they are enforced in a timely manner.

What Does the Rental  Agreement Say?  The MHCO Rental Agreement provides that a tenant may not “erect additional structures (attached or detached), including but not limited to fencing, steps, or decks, to the exterior of the Home or anywhere upon the Space (hereinafter “Construction”) without LANDLORD’S prior written approval.”

This imposes a duty on management to be vigilant. If an unpermitted fence goes up and is allowed to remain without oversight, it could result in waiver issues for the landlord.

Management must be proactive and require that any recently unpermitted fences be vetted in accordance with Section 7 of the MHCO Rental Agreement (Improvement to Rental Space or Home).  They should either be made to conform to all applicable laws and codes or removed.

Preexisting Fences/Structures. Again, vigilance is the watchword. Before permitting an owner to sell their home, landlord should make sure that there are no structures out of conformance with all codes and laws. This can be reasonably easy to do, especially if it is covered in the Park Rules dealing with obtaining landlords consent to sell. Using ORS 90.632 (Termination/Deterioration of Home) unfortunately, does not directly apply because it pertains only to homes.

However, landlords can craft a rule change that would accomplish the same result for all fences or other structures on the space which were either installed by the tenant or existed at the time of purchase of the home. Like ORS 90.632, the notice could be made transferable and imposed upon the new tenant/buyer if he/she agrees. This would then be  something the existing homeowner could negotiate with the new buyer as a part of the sale. In this manner noncompliant fences, etc. can be corrected.

What About Pre-existing Fences at Time of Park Purchase?  In my opinion, this is a due diligence item for Park purchasers to attend to. Unfortunately, I have seen many instances of where it is not done; thus the problem gets ignored until something occurs, such as an argument between tenants as to who has the duty to maintain.  Is the fence even located where it should be? Upon park purchase, landlords should consider vetting the issue between the tenants who border the fence.  Who maintains? What do the Rules say?

Going forward, this is a significant issue for landlords to consider when amending their rules. In a perfect world, the new rule should address maintenance responsibility. The easiest solution is a shared liability between bordering tenants – assuming that the fence was there when all tenants purchased their homes. If one tenant unilaterally installed a fence (benefiting both adjoining tenants) the issue becomes whether the tenant who did not construct or ask for the fence should have to pay. (Note to Landlord: This is what happens when the new fence construction is ignored and allowed to remain without resolving the issue at or before construction.)

This might be something that mandatory mediation under ORS 90.767 could address.

Park Installed Fences. Clearly, these are the landlord’s duty to maintain, even if they were installed before Park purchase. One issue, however, is that Park purchasers should make sure the preexisting fences are on or near the correct boundary lines. Tip: The older the fence, the greater the likelihood it needs to be surveyed as a condition of purchase.

Tree Damage to Fences. Tenants are, by statute, required to maintain and water trees, includingcleanup and removal of fallen branches and leaves, on the rented space - except for hazard trees. “Maintaining a  tree” means removing or  trimming a  tree  for  the  purpose  of eliminatingfeatures of the  tree  that  cause the  tree  to  be hazardous, or  that  may  cause  the  tree tobecome hazardous in  the  near  future. “Removing a tree”  includes felling it, removing it, and  grinding or removing the stump of the tree.

But for damage to fences, ultimately the issue goes back to whose fence it is and who has maintenance and repair duties. This may not be addressed in the rental agreement or rules. But it could be by a rule change.

The Take-Away. As a rule of thumb, the landlord is in the best position to deal with these issues proactively. This can be done by a good rental agreement such as the MHCO form, plus implementing rules to address fences. Oregon law permits amending the rules even if they alter the bargain at the inception of the tenant’s tenancy. (Check with your lawyer first!)

But the bottom line is that in the event a fence has been allowed to remain between tenants’ spaces with no landlord involvement, the damaged fence should be repaired. If the tenants cannot or will not agree, it will likely become management’s responsibility, because it could have been addressed originally, but was  not.

Answer: There are certain facts that are missing from this question. I will supply them and then answer. So, let’s assume the following: (a) This is a periodic (i.e. month-to-month) tenancy; (b) The tenant has moved out of the home and it is now vacant; (c) The rents are not being paid; and lastly, let’s assume that (d) The landlord was to be paid all past-due rent from the sale proceeds. However, before answering the question, however, let me point out a fatal error by this landlord – and many other landlords: They don’t look at the Worst Case Scenario. I’m sure the Storage Agreement adequately covered what was to occur upon sale. But since we have a landlord now asking what happens if the sale does not occur by November 30, I’m led to believe the parties neglected to address (in writing) the possibility of failure. Memo to MHCO landlords: Written agreements with tenants should always address “the exit strategy” – i.e. what protocol kicks in if the home is not sold and not removed by November 30. Without addressing this issue in the written Storage Agreement, we are left to figure out what Oregon law would provide under these facts. Here’s my take: • On December 1, the landlord should contact the ex-tenant and demand that the home be removed. This should be done in writing or e-mail, so it can be used later if necessary. • If removal does not occur promptly, the landlord must rely upon Oregon law. Unfortunately, the law leaves landlords holding the bag if a home is abandoned. • The landlord will have to determine if the tenant will voluntarily waive his abandonment rights, and if not, then he must follow the legal procedure under ORS 90.675. If there is a lienholder on the home, the landlord will have to give them notification under the abandonment law. • If the landlord wants to leave the home on the site and resell it to a new tenant, that option is always available , and probably should be pursued first, rather than going down the abandonment route, which can be costly in time and money. Care should be exercised to properly document such an arrangement, in order to avoid later complaints by the tenant that they were taken advantage of. In Oregon, following the formal abandonment process is the only legal way for a landlord to take control of a manufactured home if the tenant fails or refuses to remove it upon termination of the tenancy.

Answer. Their fight is with each other, but the court will decide ownership; who signs the storage agreement is not going to carry the day. So in the interest of moving this forward, let them both sign. But it should be under a written agreement saying that: (a) The home has to be inventoried by a neutral third party; (b) Nothing can be removed by one party without advance written notice to and consent of the other; (c) No action can be taken to sell, remove, or dispose of the home without the permission of the court; (d) Each party preserves their claims, but agrees to accept the decision of the court as final.

As for payment of the storage fee, I'd say they should work that out and include it in the writing. They could alternate payments, one pay and the other reimburse half, or any other solution that assures the park getting paid. Then the party who does not get awarded the home would be reimbursed for the storage fees advanced by the party who does.

I suppose it's also possible that the court could require the home be sold prior to close of probate, and then the proceeds divided in whatever way it decides.

The required provisions of a rental/lease agreement are covered in ORS 90.510(5). These requirements include:

1. Location and approximate size of the space.
2. Federal Fair Housing age classification.
3. Monthly rent.
4. All personal property, services and facilities to be provided by the landlord
5. All deposits (refundable and non-refundable), fees and installation charges including government fees.
6. Improvements the tenant may or must make to the space or unit including plant material and landscaping.
7. Provisions for dealing with improvements to the space.
8. Any conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. This should be identical to the community's screening criteria.
9. Term of tenancy.
10. Processes for change to rules and regulations.
11. The process by which notices shall be given by either landlord or tenant

All of these provisions are included in the MHCO Rental/Lease Agreement

(MHCO Form 5A and 5B) 

Answer: There are certain facts that are missing from this question. I will supply them and then answer. So, let's assume the following: (a) This is a periodic (i.e. month-to-month) tenancy; (b) The tenant has moved out of the home and it is now vacant; (c) The rents are not being paid; and lastly, let's assume that (d) The landlord was to be paid all past-due rent from the sale proceeds.

However, before answering the question, however, let me point out a fatal error by this landlord - and many other landlords: They don't look at the Worst Case Scenario. I'm sure the Storage Agreement adequately covered what was to occur upon sale. But since we have a landlord now asking what happens if the sale does not occur by November 30, I'm led to believe the parties neglected to address (in writing) the possibility of failure. Memo to MHCO landlords: Written agreements with tenants should always address "the exit strategy" - i.e. what protocol kicks in if the home is not sold and not removed by November 30.

Without addressing this issue in the written Storage Agreement, we are left to figure out what Oregon law would provide under these facts. Here's my take:

• On December 1, the landlord should contact the ex-tenant and demand that the home be removed. This should be done in writing or e-mail, so it can be used later if necessary.
• If removal does not occur promptly, the landlord must rely upon Oregon law. Unfortunately, the law leaves landlords holding the bag if a home is abandoned.
• The landlord will have to determine if the tenant will voluntarily waive his abandonment rights, and if not, then he must follow the legal procedure under ORS 90.675.[2] If there is a lienholder on the home, the landlord will have to give them notification under the abandonment law.
• If the landlord wants to leave the home on the site and resell it to a new tenant, that option is always available[3], and probably should be pursued first, rather than going down the abandonment route, which can be costly in time and money. Care should be exercised to properly document such an arrangement, in order to avoid later complaints by the tenant that they were taken advantage of.

In Oregon, following the formal abandonment process is the only legal way for a landlord to take control of a manufactured home if the tenant fails or refuses to remove it upon termination of the tenancy.

[1] The question about a one-year rule, relates only to the closure of a park or park space, and will not be addressed here.

[2] This may mean that the landlord will have to go through the exercise of issuing a 72-hour notice, then going to court to get a judgment of restitution. Only then is it safe for the landlord to proceed with abandonment.

[3] If title to the home shows that a lienholder has a security interest, the formal abandonment procedure must likely be followed.

Items that are prohibited from a Rental Agreement are covered in ORS 90.245. The following items are prohibited from inclusion in a Rental/Lease Agreement:

1. Agreements to waive or forego rights or remedies
2. Confessions of Judgement.
3. Certain limitations of liability

Note: Landlord may be responsible for 3 times the monthly rent in damages for attempting to enforce prohibited provisions. 

1. If the provider doesn'tqualify based on the background check[1] then you don't have to accept them into the Community;
2. If they violate rules of the community when they are already in the Community you can require they leave. (Of course if they are not on an Occupancy Agreement, this could mean removing the tenant if the caregiver refuses to leave, and the tenant doesn'tforce them to do so);

• You can pre-qualify the person as a care provider, i.e. required a letter or similar proof from a doctor or someone, saying the tenant needs someone 24/7;
• If they can't provide that proof, then you don't have to allow them into the Community as a care provider (although I can't imagine it would be very hard to obtain such proof);
• You have to give the tenant a choice (assuming the person qualifies under the background check), i.e. they can be on an Occupancy Agreement or go onto a Rental Aagreement. You can't automatically say, "OK, you must go on an Occupancy Agreement."
• It is believed that if the tenant understands the risk of allowing the caregiver to be a tenant (i.e. if the caregiver is disruptive, the current tenant may have to leave also), that they will voluntarily opt to put the person on the Occupancy Agreement. (Note: This doesn'taddress the problem where the person doesn'tfinancially qualify to be on the Rental Agreement, but I suspect FHCO would say it's a "reasonable accommodation" by the L to waive that financial requirement.) This approach may be slightly unrealistic in those cases in which the tenant wants the caregiver there, and defers to what the caregiver says.

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

Answer. There is nothing in the Oregon landlord-tenant laws that addresses this subject. This is not like an adult who wants to be approved as a resident and move in to an existing home. In that case, I can see that you would want to run him through the fully battery of checks.

But in this case, what would you learn? You would not be able to get any juvenile records. He probably has no credit to speak of, and his income is not necessary for establishing that his parents can afford to live in the community. It strikes me that going forward, you retain the same control over him as any other adults in the park. He has to obey the rules, etc., and if he doesn'tyou could issue a 30-day notice to the parents about his conduct.

If you wanted to add him as a Temporary Occupant, you could do that. If he violated rules, etc., you could terminate his right to be a Temporary Occupant, and require that he vacate. However, in this case, it does not seem that there is cause for concern.

If he had been a problem child, and now had grown into a problem adult, I would strongly recommend that you use a Temporary Occupancy Agreement. Your options in requiring that he vacate upon breach of the rules, are much swifter, although you cannot terminate without cause.

Although I don't believe I've seen this issue addressed in park rules, it's not a bad idea to have something in place. You could say that all children remaining in the park after their 18th birthday, must do X, Y, and Z. That way, when it happens, you will not be accused of picking on one particular tenant's son or daughter.

Lastly, I've often seen a similar situation, where the child moves away after his or her 18th birthday, and then returns a year or so later. Some landlords treat this as they would any other third party wanting to move into an existing resident's home. While it would be nice if the situation was addressed in the community rules, I have not seen this. I believe I would treat any adult wanting to share space with other residents, even parents, the same way I would treat unrelated parties; they must at least pass a background check. The rule should be the same for two residents who have been approved, then one leaves and comes back a year or so later.

In all cases, you can use the Occupancy Agreement, assuming the person passes their background check. If there is ever any doubt about the boomerang child, or former tenant coming back into the community, your best alternative (other than saying "No" based upon the background check) is to use the Temporary Occupancy Agreement.[1] However, never let the Temporary Occupancy Agreement be perpetual; be sure to have an expiration date on the term. You can always renew it if they behave.

[1] The statute is here. Note that you cannot qualify the Temporary Occupant based upon finances, since it is presumed their income is not necessary for the existing tenant(s) to pay the monthly space rent.