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Answer. Wow! Asking me if God caused a windstorm could get me in trouble. What if I’m wrong?  

Question No. 1. Generally, an “Act of God” is considered to be a natural disaster that is outside of human control. That would include earthquakes, windstorms, floods, tsunamis, etc. If you are asking about insurance exclusions for Acts of God, you’ll have to read you policy. Generally, however, as a landlord, you should make sure you have broad general casualty insurance coverage (as opposed to liability insurance coverage), since the former would cover casualty losses (fire, wind, flood, etc.), regardless of causation or negligence, whereas the latter would providecoverage for you only if you causedthe damage. Broad insurance coverage against casualty losses, e.g. from Acts of God, is what community owners should have. Whether residents have such coverage is less certain, since the rental/lease agreements I’ve seen either do not require any form of insurance, or occasionally only liability insurance. And unless their lender requires it, it is unlikely that many owners of older homes have any insurance against loss or damage.

Question No. 2. As to uprooted trees, let’s go to the legal definitions. A “hazard tree” under ORS 90.100(20)must include the following elements:

• It is located  onarentedspacein  amanufactureddwellingpark;

· It measures  at  least  eight inches DBH[2]; and

· It is  considered,by  an arboristlicensed asa landscape  constructionprofessionalpursuant toORS  671.560and  certifiedbythe  InternationalSociety ofArboriculture,toposean unreasonablerisk  ofcausing serious  physical harm  or damage toindividualsor  propertyin the  near  future. (Emphasis mine.)

I draw certain corollaries from this definition – some may disagree:

• A tree is a large living plant that grows out of the ground; if it is blown down, it is no longer a “tree” in the conventional sense. I have no recollection of discussing downed trees as “trees” that would somehow be subject to the hazard tree legislation. I would defer to John VanLandingham’s recollection on this, however.  This answer would seem to dispose of the above question, but I will continue, just to address the other unasked questions that will inevitably arise.
• If a tree does not measure at least eight inches, DBH, it is nota “hazard tree”. This is not to say that the tree is necessarily “safe” or that it may be ignored by landlord or resident.  In the final analysis, landlord and managers should monitor the condition of all trees, both in the common areas, and on the tenants’ spaces. Just because a tree is not a hazard tree does not mean they can be ignored. Similarly, just because the tree is a resident’s responsibility does not mean it should be ignored by management. If it is the resident’s responsibility, management should encourage compliance – since a falling tree limb or the entire tree, may cause damage or injury to other spaces and other residents.
• If a licensed arborist has either said the subject tree does not pose a risk of harm, or the arborist has never opined at all, it is nota “hazard tree”. Again, this does not mean the tree may, or should be, ignored.
• Lastly, remember that all of the above three elements (on the resident’s space; eight inches DBH, and considered dangerous by a licensed arborist) must occur together before a tree can be considered a “hazard tree”.  

Once it meets the statutory definition, then the legal obligations found in ORS 90. 725, 90.727, 90.730, and 90.740apply.  See discussion in my prior post here.

Questions Nos. 3 & 4. I believe the answer to who responsibility for maintenance, removal and disposal are addressed inORS 90.727(Maintenance of trees in rented spaces). Although the statutes do not referral to “disposal” they do refer to removal.  I read these words as interchangeable in this context. For example, removal of garbage and debris from one’s yard, reasonably includes disposal.  The statute provides: 

(1) As used in this section:

      (a) “Maintaining a tree” means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future.

      (b) “Removing a tree” includes:

      (A) Felling and removing the tree; and

      (B) Grinding or removing the stump of the tree.[3]

I suppose the next question is whether “removing a tree” can refer to downed trees. I think not, since the follow text quoted above, refers to “felling” it.   

Conclusion.  As noted above, landlords, more likely than residents, have insurance that deals with Acts of God. These types of natural events do not distinguish between whose property is affected, e.g. common areas vs. resident spaces. In some instances, strict enforcement of the hazard tree statute could impose a catastrophic expense to a resident that might be covered under the landlord’s insurance. In such cases, consideration should be given to providing assistance/coverage rather than forcing a tenant into bankruptcy or financial distress.

Answer to Question No. 1. Generally, an "Act of God" is considered to be a natural disaster that is outside of human control. That would include earthquakes, windstorms, floods, tsunamis, etc. If you are asking about insurance exclusions for Acts of God, you'll have to read you policy. Generally, however, as a landlord, you should make sure you have broad general casualty insurance coverage (as opposed to liability insurance coverage), since the former would cover casualty losses (fire, wind, flood, etc.), regardless of causation or negligence, whereas the latter would provide coverage for you only if you caused the damage. Broad insurance coverage against casualty losses, e.g. from Acts of God, is what community owners should have. Whether residents have such coverage is less certain, since the rental/lease agreements I've seen either do not require any form of insurance, or occasionally only liability insurance. And unless their lender requires it, it is unlikely that many owners of older homes have any insurance against loss or damage.

Answer to Question No. 2. As to uprooted trees, let's go to the legal definitions. A "hazard tree" under ORS 90.100(20) must include the following elements:

• It is located on a rented space in a manufactured dwelling park;
• It measures at least eight inches DBH[2]; and
• It is considered, by an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture, to pose an unreasonable risk of causing serious physical harm or damage to individuals or property in the near future. (Emphasis mine.)

I draw certain corollaries from this definition - some may disagree:

• A tree is a large living plant that grows out of the ground; if it is blown down, it is no longer a "tree" in the conventional sense. I have no recollection of discussing downed trees as "trees" that would somehow be subject to the hazard tree legislation. I would defer to John VanLandingham's recollection on this, however. This answer would seem to dispose of the above question, but I will continue, just to address the other unasked questions that will inevitably arise.
• If a tree does not measure at least eight inches, DBH, it is not a "hazard tree". This is not to say that the tree is necessarily "safe" or that it may be ignored by landlord or resident. In the final analysis, landlord and managers should monitor the condition of all trees, both in the common areas, and on the tenants' spaces. Just because a tree is not a hazard tree does not mean they can be ignored. Similarly, just because the tree is a resident's responsibility does not mean it should be ignored by management. If it is the resident's responsibility, management should encourage compliance - since a falling tree limb or the entire tree, may cause damage or injury to other spaces and other residents.
• If a licensed arborist has either said the subject tree does not pose a risk of harm, or the arborist has never opined at all, it is not a "hazard tree". Again, this does not mean the tree may, or should be, ignored.
• Lastly, remember that all of the above three elements (on the resident's space; eight inches DBH, and considered dangerous by a licensed arborist) must occur together before a tree can be considered a "hazard tree".

Once it meets the statutory definition, then the legal obligations found in ORS 90. 725, 90.727, 90.730, and 90.740 apply.

Answer to Questions Nos. 3 & 4. I believe the answer to who responsibility for maintenance, removal and disposal are addressed in ORS 90.727 (Maintenance of trees in rented spaces). Although the statutes do not referral to "disposal" they do refer to removal. I read these words as interchangeable in this context. For example, removal of garbage and debris from one's yard, reasonably includes disposal. The statute provides:

(1) As used in this section:

(a) "Maintaining a tree" means removing or trimming a tree for the purpose of eliminating features of the tree that cause the tree to be hazardous, or that may cause the tree to become hazardous in the near future.

(b) "Removing a tree" includes:

(A) Felling and removing the tree; and

(B) Grinding or removing the stump of the tree.[3]

I suppose the next question is whether "removing a tree" can refer to downed trees. I think not, since the follow text quoted above, refers to "felling" it.

Conclusion. As noted above, landlords, more likely than residents, have insurance that deals with Acts of God. These types of natural events do not distinguish between whose property is affected, e.g. common areas vs. resident spaces. In some instances, strict enforcement of the hazard tree statute could impose a catastrophic expense to a resident that might be covered under the landlord's insurance. In such cases, consideration should be given to providing assistance/coverage rather than forcing a tenant into bankruptcy or financial distress.

[1] I regard a tree never "planted by the tenant or landlord" as owned by the landlord, since they own the ground. When the landlord bought the property, they assumed the obligation to maintain the trees that came with it (assuming the resident didn'tplant them, and assuming the statutes don't provide otherwise).

[2] "DBH" means the diameter at breast height, which is measured as the width of a standing tree at four and one-half feet above the ground on the uphill side.

[3] The balance of the statute is relevant to who has the responsibility, and is addressed here. It provides: (2) The landlord or tenant that is responsible for maintaining a tree must engage a landscape construction professional with a valid license issued pursuant to ORS 671.560 to maintain any tree with a DBH of eight inches or more. (3) A landlord: (a) Shall maintain a tree that is a hazard tree, that was not planted by the current tenant, on a rented space in a manufactured dwelling park if the landlord knows or should know that the tree is a hazard tree. (b) May maintain a tree on the rented space to prevent the tree from becoming a hazard tree, after providing the tenant with reasonable written notice and a reasonable opportunity to maintain the tree. (c) Has discretion to decide whether the appropriate maintenance is removal or trimming of the hazard tree. (d) Is not responsible for maintaining a tree that is not a hazard tree or for maintaining any tree for aesthetic purposes. (4) A landlord shall comply with ORS 90.725 before entering a tenant's space to inspect or maintain a tree. (5) Except as provided in subsection (3) of this section, a tenant is responsible for maintaining the trees on the tenant's space in a manufactured dwelling park at the tenant's expense. The tenant may retain an arborist licensed as a landscape construction professional pursuant to ORS 671.560 and certified by the International Society of Arboriculture to inspect a tree on the tenant's rented space at the tenant's expense and if the arborist determines that the tree is a hazard, the tenant may: (a) Require the landlord to maintain a tree that is the landlord's responsibility under subsection (3) of this section; or (b) Maintain the tree at the tenant's expense, after providing the landlord with reasonable written notice of the proposed maintenance and a copy of the arborist's report. (6) If a manufactured dwelling cannot be removed from a space without first removing or trimming a tree on the space, the owner of the manufactured dwelling may remove or trim the tree at the dwelling owner's expense, after giving reasonable written notice to the landlord, for the purpose of removing the manufactured dwelling.

You Make the Call: Did the tenant have a valid claim for refusing to make reasonable accommodations?

Answer: Yes

Ruling: The Pennsylvania federal court denied the landlord’s motion for summary judgment. To qualify for punitive damages, a plaintiff must show that a landlord’s denial of a reasonable accommodation “involves malicious intent or reckless or callous indifference” to the rights of others. The court concluded that the facts the tenant alleged were enough to allow a court to reach that conclusion and gave her the green light to try to prove those claims at trial [United States v. Dorchester Owners Ass’n, 2023 U.S. Dist. LEXIS 12432].

Takeaway: HUD Guidelines expressly state that you can’t make individuals with disabilities pay extra fees or deposits as a condition for receiving a requested accommodation. That includes charges for an assistance animal necessary to assist a person with a disability. In other words, if it’s reasonable for the applicant or tenant to have the animal, you must allow it without any additional charges. However, what you can do is hold the tenant responsible for any actual damage the animal does to the apartment after the lease ends. You can also hold the tenant accountable if the animal violates building rules, such as by creating a danger or nuisance to others in the building.

HUD recently announced that it has charged a landlord and its property managers in Manchester, N.H. with violating the Fair Housing Act by retaliating, threatening, or interfering with a tenant’s fair housing rights. The charge alleges that, after the tenant filed a Fair Housing complaint with HUD, the landlord and property manager conducted a background check on the tenant, contrary to their usual practice of not running background checks on existing tenants, and then sought to evict the tenant based on a long-ago event that the background check turned up.

The Fair Housing Act prohibits housing providers from retaliating against tenants because they exercised their rights under the Fair Housing Act. “Today’s charge sends a strong message that HUD is committed to ensuring that tenants who exercise their fair housing rights are protected from retaliatory evictions,” Diane M. Shelley, HUD’s Principal Deputy Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement.

An administrative law judge will hear HUD’s charge unless any party to the charge elects to have the case heard in federal district court. If an administrative law judge finds, after a hearing, that discrimination has occurred, they may award damages to the individuals for their losses as a result of the discrimination. The judge may also order injunctive relief and other equitable relief, to deter further discrimination, as well as payment of attorney fees. In addition, the judge may impose civil penalties to vindicate the public interest. If the federal court hears the case, the judge may also award punitive damages to the complainant.

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

Can a tenant request a mediation after I send them a termination of tenancy notice?

Mediation can be requested after a notice terminating tenancy has been sent to a tenant, but only if the request is made to MMCRC or a designated mediator and a written confirmation of that request is delivered to you (the landlord) beforethe landlord files an action for possession under ORS 105.110. If the tenant delivers a notice requesting mediation before a landlord files an eviction action, the landlord may not file such action until after the mediation process concludes. If a landlord delivers a notice requesting mediation before a tenant files an action regarding a dispute, the tenant may not file such action until after the mediation process ends. 

Can I still accept rent during the mediation process?  Yes. Notwithstanding ORS 90.412, acceptance of rent or performance by a landlord after either party requests mediation and during the mediation process does not constitute waiver of the landlord’s right to terminate a tenancy following the mediation. Acceptance of rent or performance after the mediation process ends may constitute waiver. Additionally, all statutes of limitations are suspended during the mediation process. 

What happens after the mediation? If a mediation is successful, the parties should come to an agreement that resolves the dispute. The question is how enforceable is the agreement. Enforceability will depend upon the issues involved, the terms and how the agreement is drafted. I would encourage you to discuss with your legal counsel strategies on how to make the most of a mediation.For example, if an eviction action has already commenced, you may want to attempt to make the agreement a part of the ORS 105.148 mediation/agreement process. Another example is setting up an enforcement mechanism within the agreement itself.  

The CDRC or the designated mediator shall notify MMCRC of the successful or unsuccessful outcome of the mediation. The parties and the CDRC or mediator are not required to give a copy of any mediation agreement to MMCRC.

If a mediation is not successful, the parties may continue on the path they were on before the mediation. 

This sounds expensive, who is paying for it?Mediations will be performed by the existing network of CDRC mediators, funded by the existing annual assessment already paid by tenants ($10, collected with property tax assessments).  If the parties choose a private mediator, then the parties will have to determine how that mediator is paid. Additionally, the current annual fee paid by park landlords ($25 for parks of 20 spaces or fewer, $50 for larger parks) is doubled.

Very interesting (as always), Bill, but what’s this about $100,000 annual grant to the Oregon Law Center?As you may be aware, some states have allocated substantial funding to their state’s Justice Department or to create a team of private attorneys general to assist with enforcement of tenant rights. Similar systems were originally proposed by the tenants during coalition meetings and were strongly opposed by the landlord group. The ultimate compromise was a limited $100,000 per year grant to be given to the Oregon Law Centerto employ oneattorney to provide direct legal services to statewide park and marina residents on matters arising under the Oregon Residential Landlord Tenant Act.

Is mandatory mediation and the $100,000 per year in perpetuity? No. Both elements have a four-year sunset. An advisory committee has been created to monitor both elements, consisting of equal numbers of landlord and tenant representatives to present a report on the status of both elements to the 2021 and 2023 Legislatures to determine whether they should be renewed.

When does all of this go into effect? The effective date of SB 586 is January 1, 2020

Situation: An Idaho landlord adopted a strict policy banning visitors from parking in spots reserved for tenants. In November 2016, two service providers, one black the other white, visited a tenant at the community. Upon returning to their vehicles, they discovered that the black service provider’s car had been booted while the white service provider’s car had not—even though they had both parked in similarly marked spaces.  

You Make the Call: Did the fair housing group have a valid claim for racial discrimination?

Answer: Yes

Ruling: The Idaho federal court had no problem in relying on this incident as evidence in refusing to dismiss a case alleging a pattern of discrimination over a six-year period. There was also evidence of an earlier incident where the landlord booted the car of a Black visitor who briefly parked in a tenant’s space. When she asked about having the boot removed, the landlord’s parking enforcement agent indicated that he had been “specifically instructed to show no leniency toward the African residents in enforcing the parking rules” [Intermountain Fair Hous. Council, Inc. v. Tomlinson & Assocs., 2023 U.S. Dist. LEXIS 57012].

Takeaway: It’s not enough that parking and other community rules apply to everybody. You also must ensure that those rules are enforced in a consistent and even-handed manner, regardless of the violator’s race, sex, etc.

Answer. ORS 90.545(Fixed Term Tenancies) provides that upon reaching the end of the term, the lease becomes a month-to-month tenancy on the same conditions as the lease. The only exception to this is for the landlord to submit a proposed new rental agreement to the tenant at least 60 days prior to the ending date of the term. Any provisions that are new, i.e. not in the prior lease, are to be summarized in a written statement; the same applies if the landlord is submitted new community rules.

Note that the new lease terms or new rules must “(f)airly implement a statute or ordinance adopted after the creation of the existing agreement; or Are the same as those offered to new or prospective tenants in the community. 

Further, the new lease terms or rules cannot relate to the “…age, size, style, construction material or year of construction of the manufactured dwelling” *** and cannot “…require an alteration of the manufactured dwelling *** or new construction of an accessory building or structure.

The tenant must accept or reject the proposed new lease at least 30 days prior to the ending of the term by giving written notice to the landlord.

Under the recently enacted SB 608, there is a “3-stikes” rule that applies as follows. At the end of the lease it does notautomatically become a month-to-month tenancyif:

• Landlord gives the tenant notice in writing not less than 90 days prior to the ending dateor
• 90 days prior to the date designated in the notice for the termination of the tenancy, whichever is later,and: 
  • The tenant has committed three or more (3+) violations of the lease within the preceding 12-month period and; 
  • The landlord has given the tenant a written warning notice at the time of each violation:
    • Specifying theviolation;
    • Stating that landlord may choose to terminate the tenancy at the end of the fixed term if there are three violations within a 12-month period preceding the end of the fixed term;and
    • Stating that correcting the third or subsequent violationis nota defense to termination under this subsection; and
• The 90-day notice of termination due to violations muststate:
  • That the rental agreement will terminate upon the specified ending date for the fixed term or upon a designated datenot less than 90 days after delivery of the notice, whichever is later;
• Thereasonfortheterminationandsupportingfacts;and
• Is delivered to the tenant concurrent with  or  after the  third or subsequent written warningnotice.

So, the bottom line is that under ORS 90.545, a landlord may not non-renew a tenant at the end of a lease term. You may only offer a new lease as discussed above, or follow the “3-strikes” protocol under SB 608.

Of course, you may always terminate the lease at any time for cause, pursuant to: ORS 86.782(6)(c) (foreclosure trustee sale),90.380(5) (dwelling posted asunsafe by gov’t),90.392 (termination for cause),90.394 (termination forfailure to pay rent),90.396 (termination on 24-hour notice),90.398(termination drugs, alcohol),90.405 (termination, unpermitted pet),90.440(termination in group recovery facility)or90.445 (termination for criminalact).