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However reasonable your suspicions, it’s necessary to set them aside and handle the request as a request for a reasonable accommodation. Communities may enforce policies to ban or restrict pet ownership, but it’s unlawful to refuse reasonable and necessary accommodations to residents who need assistance animals to help them with their disabilities.

If in doubt about whether the resident has a disability-related need to keep an assistance animal, you should ask for more information so you can respond properly to the request. Rejecting it out of hand can only lead to fair housing trouble.

Example: In January 2015, HUD charged a Brooklyn cooperative community with discriminating against a veteran with a psychiatric disability for refusing to let him keep an emotional support animal. According to HUD, the community wrongfully denied the resident’s request for a reasonable accommodation even though he provided medical documentation verifying his condition and need for the dog and took steps to evict him and his wife in retaliation for filing a fair housing complaint. The case will be heard by an administrative judge unless either party takes the case to federal court [Secretary, HUD v. Trump Village Section IV Inc., January 2015].

If the resident qualifies for a reasonable accommodation to keep an assistance animal, then you’ll also have to waive any extra fees or deposits under your pet policy. According to federal guidelines, communities may not require individuals with disabilities to pay extra fees or security deposits as a condition of allowing them to keep an assistance animal as a reasonable accommodation. If you insist that the resident must pay the pet fee to keep an assistance animal, then you could be hit with hefty penalties.

Example: In November 2014, the owners and manager of a Washington community agreed to pay $25,000 to resolve allegations that they refused to grant a reasonable accommodation to waive a $1,000 pet deposit for a resident with mental disabilities who needed a dog as an emotional support animal. Allegedly, they refused to grant the waiver despite numerous attempts by the resident to provide documentation of her disability and her need for the emotional support animal. The complaint also accused them of retaliating against her for filing a fair housing complaint with HUD [U.S. v. Barber, November 2014].

Though dogs are at the center of many fair housing cases, you should be prepared for requests to keep cats, birds, ferrets, reptiles, and other types of animals as assistance animals. According to HUD, species other than dogs, with or without training, and animals that provide emotional support have been recognized as necessary assistance animals under fair housing law.

Answer. Caveat: I am answering this question as a hypothetical situation, and no intent is made to render a legal opinion about an actual situation. Here are my thoughts:

1. Owner No. 1, who had knowledge of the situation has potential liability to the affected residents and Owner No. 2. Intentional non-disclosure of material information is fraudulent and actionable. While it would be important for Owner No. 1 to disclose the condition to residents, it is a habitability situation, and, given the materiality, not waivable. In other words, unless and until the instability issue is resolved, the space should not be rented out, and Owner No. 1's liability for placing a home on the space is not reduced by disclosing it.

A more difficult issue is whether Owner No. 1 has liability to other residents who are not affected by the unstable ground, but claim that they would not have rented a space in the community had they known of the issue. If, after a thorough evaluation of the entire community, it is determined that the instability is limited exclusively to one area, I submit that disclosure to existing non-affected and new residents is still the wisest course, and likely would entail no liability to Owner No. 1. But non-disclosure leaves open the door for residents, new and existing, to claim that they cannot sell their homes because the community has been stigmatized.

1. As for Owner No. 1's liability to Owner No. 2, it would be based primarily upon the principle of indemnification. Although much depends upon the terms of sale (e.g. how broad was the "AS-IS" clause?)[1], I would like to say that Owner No. 2 should have no liability to the residents, since he was completely unaware of the adverse condition. But law and life are never so simple.

First, Owner No. 2 now has the absolute duty of providing safe and habitable premises to the residents, i.e. the space and common areas. As a landlord, he assumed this risk, and will likely have direct liability to the residents - even though he had no forewarning of the problem. From a public policy standpoint, the law would say he was in the best position to insure against these risks, as they are a cost of doing business.

However, since Owner No. 1's non-disclosure was a material (e.g. would he have purchased the property had he known?) Owner No. 2 would likely seek recovery against him for the fraudulent concealment.

[1] Although I have seen very broad "AS-IS" clauses in commercial transactions, they are normally couched in terms of the buyer assuming all risks of loss for matters about which neither side is aware. I do not believe the clause can be used to shield a seller from intentional non-disclosure of material issues. In other words, at the time of agreeing to "AS-IS" language in the sale agreement, a buyer has a right to believe the seller has disclosed all material information.

Readers of my article will note that my focus was primarily on the federal laws. This was because during my research, I was directed by the Oregon Health Authority (here) to the federal HUD website. However, as John points out, '_Oregon fair housing law is "substantially equivalent" to federal fair housing law." So, generally speaking, on the issue of medical marijuana, as goes the federal law, so goes Oregon law. John directed me to the 2010 Oregon case of Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, which addressed many unanswered questions on the use of medical marijuana in this state. The answers contained in that case represent the most current state of medical marijuana law in Oregon both from an employment and housing perspective. John, as a board member of Fair Housing Council of Oregon ("FHCO"), also directed me to the following FHCO article [authored after the Emerald Steel Fabricators case], which serves as a good resource on the issue of medical marijuana use in Oregon. The FHCO article can be found here. Keep in mind that the law is still developing, so you should consult your own legal counsel on these issues. These MHCO articles should not be relied upon as legal advice. So, to incorporate these resources into my prior answer, here are some "take-away" points for park owners and managers on the issue of usage and cultivation of medical marijuana in Oregon manufactured housing communities: - If the resident insists that you make a reasonable accommodation for them because their use is due to a disability, you may say "N0." Note, however, park residents still have the right to ask for a reasonable accommodation. - Owners and managers may not deny an applicant housing availability simply because they have, or intend to obtain, a medical marijuana card [any more than management may deny tenancy to a person who says he or she has a disability]. - To reiterate what I said in last week's article, it is my opinion that park management should institute a medical marijuana policy in the rules, dealing both with the use and cultivation of the substance inside the community. It is not a fair housing violation to prohibit it in the rules. However, if legal use or cultivation [i.e. according to Oregon state law] occurs in a community, and there are no express prohibitions against doing so, it may be difficult to bring an eviction action for the activity, unless it violates some other rule or provision in the rental agreement.

Answer: The Oregon landlord-tenant law does not "require" that a landlord accept partial payments. To the contrary, it provides that it is 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 rental agreement... ."

A landlord may refuse to accept the tender of partial rent of rent that is not paid on time. However, if the landlord agrees to accept a partial payment of rent he/she may do so, although it should be clearly described in a well-drafted written agreement.

Such partial payments do not constitute a waiver of the right to later demand prompt performance in the future. Nor do they prevent the landlord from terminating the tenancy if the balance of the rent is not paid as agreed.

However, there are some pitfalls that the landlord must be aware of: Acceptance of a partial payment waives the right of termination if accepted after issuance of a 72-hour or 144-hour notice of termination.

When presented with a partial payment issue, landlords are wise to closely review ORS 90.417. Lastly, consistent application is important - i.e. if the landlord has permitted partial payments by some residents, he/she would be hard-pressed to disallow others the right to do so without good reason.

Here are a summary of how ORS 90.417 applies to this case:

• 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 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. Doing so does not constitute a waiver, if properly documented. Here is what the landlord must do to avoid waiver:
  • The partial payment must have been made before the landlord issued a 72-hour or 144-hour notice for nonpayment.
  • The landlord must enter into a written agreement with the tenant stating that the acceptance does not constitute waiver.
  • The agreement should provide that the landlord may terminate the rental agreement and take possession as provided in the Oregon FED laws if the tenant fails to pay the balance of the rent by a time certain.
  • The tenant must agree in writing to pay the balance by a date/time certain.
• If the balance is not paid according to this written agreement, the landlord may serve a 72-hour or 144-hour nonpayment of rent notice - but it must be served no earlier than would have been permitted under the rental agreement and the law, had no rent been accepted.[1]
• Notwithstanding a landlord's acceptance of a partial payment of rent, the tenant continues to owe the landlord the unpaid balance of the rent. In other words, acceptance of partial rent does not eliminate the duty to pay the balance.

[1] This somewhat confusing statement is meant to avoid a situation where the agreement for partial payment called for payment of the balance before rent would have otherwise been due. For example, if rent is due on the first and late on the 7th, then the earliest a 72-hour or 144-hour notice could be served would be the 8th day of the month. Thus the agreement for payment of the balance of the rent may not require that the tenant pay it before the 7th day of the month.

Answer: The Oregon landlord-tenant law does not "require" that a landlord accept partial payments. To the contrary, it provides that it is 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 rental agreement... ."

A landlord may refuse to accept the tender of partial rent of rent that is not paid on time. However, if the landlord agrees to accept a partial payment of rent he/she may do so, although it should be clearly described in a well-drafted written agreement.

Such partial payments do not constitute a waiver of the right to later demand prompt performance in the future. Nor do they prevent the landlord from terminating the tenancy if the balance of the rent is not paid as agreed.

However, there are some pitfalls that the landlord must be aware of: Acceptance of a partial payment waives the right of termination if accepted afterissuance of a 72-hour or 144-hour notice of termination.

When presented with a partial payment issue, landlords are wise to closely review ORS 90.417. Lastly, consistent application is important - i.e. if the landlord has permitted partial payments by some residents, he/she would be hard-pressed to disallow others the right to do so without good reason.

Here are a summary of how ORS 90.417 applies to this case:

• 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 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. Doing so does not constitute a waiver, if properly documented. Here is what the landlord must do to avoid waiver:
  • The partial payment must have been made beforethe landlord issued a 72-hour or 144-hour notice for nonpayment.
  • The landlord must enter into a written agreement with the tenant stating that the acceptance does not constitute waiver.
  • The agreement should provide that the landlord may terminate the rental agreement and take possession as provided in the Oregon FED laws if the tenant fails to pay the balance of the rent by a time certain.
  • The tenant must agree in writing to pay the balance by a date/time certain.
• If the balance is not paid according to this written agreement, the landlord may serve a 72-hour or 144-hour nonpayment of rent notice - but it must be served no earlier than would have been permitted under the rental agreement and the law, had no rent been accepted.[1]
• Notwithstanding a landlord's acceptance of a partial payment of rent, the tenant continues to owe the landlord the unpaid balance of the rent. In other words, acceptance of partial rent does not eliminate the duty to pay the balance.

[1]This somewhat confusing statement is meant to avoid a situation where the agreement for partial payment called for payment of the balance before rent would have otherwise been due. For example, if rent is due on the first and late on the 7th, then the earliest a 72-hour or 144-hour notice could be served would be the 8thday of the month. Thus the agreement for payment of the balance of the rent may not require that the tenant pay it before the 7thday of the month.

Let’s start with the Baby Boomers vs. the Elderly.  Senior citizens are now at the top of the heap in U.S. Census numbers. The Baby Boomers are now officially “seniors” as they started turning 65 in 2011. In fact, 10,000 people turn 65 every day! The 85- to 94-year-olds experienced the fastest growth between 2000 and 2010. The senior age group is now, for the first time, the largest in terms of size and percent of the population in the US. While the overall senior population has increased, there are major social and financial differences within the group. For example, the Baby Boomers were young adults during the 1960’s and are therefore a more “free thinking” group than their parents, the 85-94 group. While the Baby Boomers generally are not cookie baking grandmothers, they still require specific attention to their needs. Socialization is a key component for any successful senior living community program, but Baby Boomers are not interested in Bingo. The Boomer generation is driven, and “self’ centered. They want control and believe in personal gratification. In contrast, the Elderly group is concerned about being a burden to their families and how long they will be able to maintain any independent living status. Boomers have the greatest percentage of wealth in our society, where the elderly group is amongst the poorest. 

Senior Trends are definitive, and developers and builders need to get ahead of the trends seniors are demanding. Will the product we build today be desirable or outdated in 5, 10, 15 years? Why do we insist that seniors should live in small apartments with no dishwashers? Why do we expect seniors to dispose of all their possessions to live in one of our units with 600 square feet?  Just because someone has a birthday does not mean they should automatically relinquish the amenities one would expect, or the amenities they have always had. Senior housing is not just for little old ladies anymore! The rules of the past may not apply to this new generation of seniors. Boomers have already shown signs of not following their predecessors in the products and services they desire. They will work longer (don’t skimp on parking places) prefer to age in place (smart floor plans, upgraded interior appointments, green features), 89% of seniors are on-line at least once a day (think Wi-Fi, not computer classes), and desire more active retirement scenarios (think wine tasting rather than a quilting bee). For example, on site movie theatres, a concierge (not “activities director”), opportunities that reflect current social trends (golf, gardening, cooking, decorating), concerts with varied options, a technology driven entertainment center (think XBox, not shuffleboard) are just some ideas of how to attract the new generation of seniors. Remember, “Oldies” are not just Frank Sinatra and Doris Day, but the Beatles and The Stones! 

Financial Issues We are living a decade longer than our parent’s generation due to healthy aging and increased access to healthcare. Although this would seem to be a welcome fact, there are many seniors who live with the very real threat of running out of financial resources to sustain this longevity. Nearly half a million elderly living alone in California cannot make ends meet. These seniors lack sufficient income to pay for a minimum level of housing, food, health care, transportation, and other basic expenses. “As the economy wipes out retirement savings and destroys home equity, our parents and grandparents will find paying for a roof over their heads and affording basic necessities even more of a struggle,” said Steven P. Wallace, Ph.D., Center of Human Policy Research. This research shows that elder economic insecurity is problematic in both more and less affluent counties. A majority of all single elders aged 75 or older are economically insecure.  The numbers of affected seniors are likely to be even higher as the current recession deepens. So, what do we do? It may be a reasonable accommodation to change the rent due date to allow for the changing dynamic with assistance payments. All resources should be explored to keep the senior in their housing with eviction as a last resort.

Mental Illness affects one out of every five seniors in America. Just a handful of significant mental health problems that may occur are delirium, dementia, depression, and schizophrenia. Older adults who suffer with mental health conditions often have very abnormal behavior and patterns that create a decreased capacity for them to function independently. In many cases, mental health problems in seniors are too often ignored by health care professionals and attributed to “old age.”  Traditionally, our culture does not show any type of respect or dignity for those suffering from mental health disease. As our population ages, this challenge will become more prevalent. Many of our residents relocated to California and left their families to pursue the “golden dream.”  This has left them alone in their elderly years, and they look at us to fill that role for them. Our roles as rental housing professionals will need to evolve into a position of being able to locate resources that can help our aging residents.  This is why partnering with various social service agencies is such a vital component to add to our amenities on senior communities. 

So, how do we support the staff? I believe that there is a special place in property management heaven for our staff members that contribute to the success of our senior communities!  We depend on these employees to provide customer service on a completely different level. The demands of the senior resident are wide and varied….” why does that animal live here?”  “I do not like the looks of my neighbor;” “She is looking at my husband?” “Why can’t you take me to the store?” …. etc. Our responses must be kind but firm, and conversations must be conducted in terminology that seniors understand. Many seniors believe that the management of our communities have a greater responsibility to them – this makes sense if we keep in mind that they have owned their own homes for many years and probably had some resistance to moving into a “retirement home” that they may think is Assisted Living. Their sense of entitlement runs deep after so many years of being valued and contributing members of our society. Employees are challenged with understanding the perspective of the senior resident. We need to provide major support to these employees and provide continual education on how to interact with seniors. A little pampering and wide shoulders to cry on wouldn’t hurt either!

Professionals in the senior housing industry provide a vital service that goes beyond housing. We provide care, comfort, and a sense of family to our residents. This population segment will only increase so as an industry we need to get ahead of the trends and prepare for the influx of senior residents that will come our way. Our senior consumer wants reasons to believe, not empty facts. They want an emotional connection that goes beyond the walls and floors. Will you be ready for them?

For more information on training topics, including newly developed curriculum devoted to Senior Housing, contact Angel Rogers at (909)725-2700 or angel@angelrogers.com

Ask anyone who works on a Senior Living Community how they like their job and I can almost guarantee that they will tell you they have a love-hate relationship with it. Most employees will tell you that they love working with seniors; that they are a nice group of people, and they have a bond with them that they have never experienced while working on a multi-family community.  They will also tell you of the heartaches and troubles of a senior community; and this is not just the obvious complications of dealing with an aging resident population. You will hear about the vast disparity between “the new senior” and “the elderly,” the trends seniors are setting, the financial issues many seniors are facing, the troubling issue of increasing mental illness in seniors, and the demands seniors are making on staff. How does all this affect not only the senior market, but how will it affect the market at large? How do we stay on top of trends, and how do we assist the employees in this highly specialized market segment? 

Let’s start with the Baby Boomers vs. the Elderly.  Senior citizens are now at the top of the heap in U.S. Census numbers. The Baby Boomers are now officially “seniors” as they started turning 65 in 2011. In fact, 10,000 people turn 65 every day! The 85- to 94-year-olds experienced the fastest growth between 2000 and 2010. The senior age group is now, for the first time, the largest in terms of size and percent of the population in the US. While the overall senior population has increased, there are major social and financial differences within the group. For example, the Baby Boomers were young adults during the 1960’s and are therefore a more “free thinking” group than their parents, the 85-94 group. While the Baby Boomers generally are not cookie baking grandmothers, they still require specific attention to their needs. Socialization is a key component for any successful senior living community program, but Baby Boomers are not interested in Bingo. The Boomer generation is driven, and “self’ centered. They want control and believe in personal gratification. In contrast, the Elderly group is concerned about being a burden to their families and how long they will be able to maintain any independent living status. Boomers have the greatest percentage of wealth in our society, where the elderly group is amongst the poorest. 

Senior Trends are definitive, and developers and builders need to get ahead of the trends seniors are demanding. Will the product we build today be desirable or outdated in 5, 10, 15 years? Why do we insist that seniors should live in small apartments with no dishwashers? Why do we expect seniors to dispose of all their possessions to live in one of our units with 600 square feet?  Just because someone has a birthday does not mean they should automatically relinquish the amenities one would expect, or the amenities they have always had. Senior housing is not just for little old ladies anymore! The rules of the past may not apply to this new generation of seniors. Boomers have already shown signs of not following their predecessors in the products and services they desire. They will work longer (don’t skimp on parking places) prefer to age in place (smart floor plans, upgraded interior appointments, green features), 89% of seniors are on-line at least once a day (think Wi-Fi, not computer classes), and desire more active retirement scenarios (think wine tasting rather than a quilting bee). For example, on site movie theatres, a concierge (not “activities director”), opportunities that reflect current social trends (golf, gardening, cooking, decorating), concerts with varied options, a technology driven entertainment center (think XBox, not shuffleboard) are just some ideas of how to attract the new generation of seniors. Remember, “Oldies” are not just Frank Sinatra and Doris Day, but the Beatles and The Stones! 

Financial Issues We are living a decade longer than our parent’s generation due to healthy aging and increased access to healthcare. Although this would seem to be a welcome fact, there are many seniors who live with the very real threat of running out of financial resources to sustain this longevity. Nearly half a million elderly living alone in California cannot make ends meet. These seniors lack sufficient income to pay for a minimum level of housing, food, health care, transportation, and other basic expenses. “As the economy wipes out retirement savings and destroys home equity, our parents and grandparents will find paying for a roof over their heads and affording basic necessities even more of a struggle,” said Steven P. Wallace, Ph.D., Center of Human Policy Research. This research shows that elder economic insecurity is problematic in both more and less affluent counties. A majority of all single elders aged 75 or older are economically insecure.  The numbers of affected seniors are likely to be even higher as the current recession deepens. So, what do we do? It may be a reasonable accommodation to change the rent due date to allow for the changing dynamic with assistance payments. All resources should be explored to keep the senior in their housing with eviction as a last resort.

Mental Illness affects one out of every five seniors in America. Just a handful of significant mental health problems that may occur are delirium, dementia, depression, and schizophrenia. Older adults who suffer with mental health conditions often have very abnormal behavior and patterns that create a decreased capacity for them to function independently. In many cases, mental health problems in seniors are too often ignored by health care professionals and attributed to “old age.”  Traditionally, our culture does not show any type of respect or dignity for those suffering from mental health disease. As our population ages, this challenge will become more prevalent. Many of our residents relocated to California and left their families to pursue the “golden dream.”  This has left them alone in their elderly years, and they look at us to fill that role for them. Our roles as rental housing professionals will need to evolve into a position of being able to locate resources that can help our aging residents.  This is why partnering with various social service agencies is such a vital component to add to our amenities on senior communities. 

So, how do we support the staff? I believe that there is a special place in property management heaven for our staff members that contribute to the success of our senior communities!  We depend on these employees to provide customer service on a completely different level. The demands of the senior resident are wide and varied….” why does that animal live here?”  “I do not like the looks of my neighbor;” “She is looking at my husband?” “Why can’t you take me to the store?” …. etc. Our responses must be kind but firm, and conversations must be conducted in terminology that seniors understand. Many seniors believe that the management of our communities have a greater responsibility to them – this makes sense if we keep in mind that they have owned their own homes for many years and probably had some resistance to moving into a “retirement home” that they may think is Assisted Living. Their sense of entitlement runs deep after so many years of being valued and contributing members of our society. Employees are challenged with understanding the perspective of the senior resident. We need to provide major support to these employees and provide continual education on how to interact with seniors. A little pampering and wide shoulders to cry on wouldn’t hurt either!

Professionals in the senior housing industry provide a vital service that goes beyond housing. We provide care, comfort, and a sense of family to our residents. This population segment will only increase so as an industry we need to get ahead of the trends and prepare for the influx of senior residents that will come our way. Our senior consumer wants reasons to believe, not empty facts. They want an emotional connection that goes beyond the walls and floors. Will you be ready for them?

For more information on training topics, including newly developed curriculum devoted to Senior Housing, contact Angel Rogers at (909)725-2700 or angel@angelrogers.com

Answer A : First, the MHCO Lease cited above addresses this. Not fixing the leaks, which are their responsibility to do, is a violation. Secondly, ORS 90.740(f) requires that tenants "(u)se electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems. The tenant is using the water system in an unreasonable manner when they refuse to fix the leaks.

ORS 90.630 (Termination by Landlord) provides, in relevant part, the following:

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

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

(b) Violates a rule or rental agreement provision related to the tenant's conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing... .

ORS 90.630 goes on to explain that you may issue a 30-day written notice of termination, allowing the tenant to fix the leaks within 30 days and avoid termination. If they fail to do so, you may file for eviction. If they cure, but the problem occurs again within six months following the date of your earlier 30-day notice, you may terminate the tenancy within 20 days, and there is no opportunity to cure. MHCO has the necessary forms.

Be sure you have papered your file to support your contention that these are water leaks for which the tenant is responsible, and then specifically describe the violations (there are two of them, one under the Lease, and the other under the statute) in the Notice.

Answer B: This question is same as the prior one and the answer is the same (although the placement of the requirement may not be in the same location, depending on the date of your lease or rental agreement). Just make sure you have the evidence (e.g. plumber statement) before acting, and that you adequately identify the problem and solution in the Notice.

Answer.  Under the current law,[1]a landlord may unilaterally amend a rental agreement to convert to submetering by giving the tenant not less than 180 days’ written notice.

1. If the utility or service was included in the rent before the conversion to submeters, the landlord must reduce the tenant’s rent on a pro rata basis upon the landlord’s first billing of the tenant using the submeter method. 
2. The rent reduction may not be less than an amount reasonably comparable to the amount of the rent previously allocated to the utility or service cost averaged over at least the preceding one year. 
3. A landlord may not convert billing to a submeter method less than one yearafter giving notice of a rent increase, unless the rent increase is an automatic increase provided for in a fixed term rental agreement entered into one year or more before the conversion. 
4. Before billing the tenant using the submeter method, the landlord must provide the tenant with written documentation from the utility or service provider showing the landlord’s cost for the utility or service provided to the facility during at least the preceding year.
5. A utility or service charge to be assessed to a tenant may consist of:
   1. The cost of the utility or service provided to the tenant’s space and under the tenant’s control, as measured by the submeter, at a rate no greater than the average rate billed to the landlord by the utility or service provider, not including any base or service charge;
   2. The cost of any sewer service for wastewater as a percentage of the tenant’s water charge as measured by a submeter, if the utility or service provider charges the landlord for sewer service as a percentage of water provided;
   3. A pro rata portion of the cost of sewer service for storm water and wastewater if the utility or service provider does not charge the landlord for sewer service as a percentage of water provided;
   4. A pro rata portion of costs to provide a utility or service to a common area;
   5. A pro rata portion of any base or service charge billed to the landlord by the utility or service provider, including but not limited to any tax passed through by the provider; and
   6. A pro rata portion of the cost to read water meters and to bill tenants for water if:
      • A third-party service reads the meters and bills tenants for the landlord; and
      • The landlord allows the tenants to inspect the third party’s billing records as provided by ORS 90.538.
6. A landlord may not bill or collect more money from tenants for utilities or services than the utility or service provider charges the landlord. 
7. A utility or service charge to be assessed to a tenant under the submetering law may not include any additional charge, including any costs of the landlord, for the installation or maintenance of the utility or service system or any profit for the landlord.      
8. To assess a tenant for a utility or service charge for any billing period using submetering the landlord must  give the tenant a written notice stating the amount of the utility or service charge that the tenant is to pay the landlord and the due date for making the payment. 
   1. The due date may not be before the date of service of the notice. 
   2. If the rental agreement allows delivery of notice of a utility or service charge by electronic means, for purposes of this subsection, “written notice” includes a communication that is electronically transmitted.
   3. If the landlord includes in the notice a statement of the rent due, the landlord shall separately and clearly state the amount of the rent and the amount of the utility or service charge.

No. 2 Question. The tenants were given the 180-day notice of water submetering and space rents haven't been raised in a year.  Do I need to do anything else before I start billing them?

Answer. Note that the law provides the one-year period runs from the dateof the last rent increase notice. So that means that your last increase need be no sooner than nine months (i.e. 12 months minus 3 months, or 90 days under ORS 90.600 (Rent Increases)if tenants are on month-to-month tenancies). As for what else you need to do, see answers 4) and 8) to Question No. 1, above.

No. 3 Question. My understanding is that I have to now lower space rents (in addition to not raising lot rents for a year) equal to what they have individually paid on average.  How long before I can raise rents again?

Answer.  The only limitation is the prohibition on raising the rent is a landlord may not raise the rent for purpose purposes or recouping the capital cost within the first six months after installation of the submeters. If the rent increase was for other reasons, I see no limitations. However, I think the “optics” of increasing rents immediately after reducing them as a part of a submeter conversion would raise questions of bad faith under ORS 90.130(Obligation of Good Faith).

No. 4 Question.Can I add the billing fee to the water bill?

Answer. I am not sure what you mean by a “billing fee”.  ORS 90.536(2) (Charges for Utilities)provides the landlord may recover:

1. The cost of the utility or service provided to the tenant’s space as measured by the submeter, at a rate no greater than the average rate billed to the landlord by the utility or service provider, not including any base or service charge;
2. The cost of any sewer service for wastewater as a percentage of the tenant’s water charge as measured by a submeter, if the utility or service provider charges the landlord for sewer service as a percentage of water provided;
3. A pro rata portion of the cost of sewer service for storm water and wastewater if the utility or service provider does not charge the landlord for sewer service as a percentage of water provided;
4. A pro rata portion of costs to provide a utility or service to a common area;
5. A pro rata portion of any base or service charge billed to the landlord by the utility or service provider, including but not limited to any tax passed through by the provider; and
6.  A pro rata portion of the cost to read water meters and to bill tenants for water if:
   1.  A third-party service reads the meters and bills tenants for the landlord; and
   2.  The landlord allows the tenants to inspect the third party’s billing records as provided by ORS 90.538 (Tenant Inspection of Utility Billing Records)

      (3) Except as provided in subsection (2) of this section, the landlord may not bill or collect more money from tenants for utilities or services than the utility or service provider charges the landlord. A utility or service charge to be assessed to a tenant under this section may not include any additional charge, including any costs of the landlord, for the installation or maintenance of the utility or service system or any profit for the landlord.

No. 5 Question.Can I add the cost of the water meters AND the installation labor to the water bill amortized over 5 years in monthly payments?  How exactly does this work?

Answer.  The landlord may recover the cost of installing the submeters, including costs to improve or repair existing utility or service system infrastructure necessitated by the installation of the submeters, only as follows:

1. By raising the rent (as with any capital expense), except the landlord may not raise the rent for this purpose within the first six months after installation of the submeters; or
2. By imposing a special assessment pursuant to a written special assessment plan adopted unilaterally by the landlord. 
   1. The plan may include only the landlord’s actual costs to be recovered on a pro rata basis from each tenant with payments due no more frequently than monthly over a period of at least 60 months. 
   2. Payments must be assessed as part of the utility or service charge. 
   3. The landlord must give each tenant a copy of the plan at least 90 days before the first payment is due. 
   4. Payments may not be due before the completion of the installation but must begin within six months after completion. 
   5. A new tenant of a space subject to the plan may be required to make payments under the plan. Payments must end when the plan ends. 
   6. The landlord is not required to provide an accounting of plan payments made during or after the end of the plan.

No. 6 Question. Do the tenants need to sign a lease addendum?

Answer.  Oregon law allows landlords to “unilaterally amend” the rental agreement to provide for conversion to submetering assuming the rental agreement does not already allow the landlord to do so. 

In those cases, tenants should each be given an amendment providing that the landlord may convert from pro-rata or in-rent water charges to submetering. There is no specific period after the unilateral amendment that the landlord must convert. The current MHCO rental and lease agreements already provide for this. However, due to the submetering legislative changes effective on January 1, 2020, they will need to be updated.

Answer: In a word - No. Or, to be more precise, as discussed below, if you do not renew the lease, it will automatically become a month-to-month tenancy on the same terms as the lease. In other words, your non-renewal will not result in forcing the tenant to vacate the space.

When this law was first being discussed, this issue was addressed. Prior to enactment, there was an open question whether fixed term tenancies [i.e. leases - those with definite start and ending dates] were even legal. From the tenants' perspective, under the manufactured housing landlord-tenant laws, since a landlord cannot terminate a tenancy "without cause," a lease that expires without renewal is the same thing i.e. termination without cause. Accordingly, ORS 90.545 was enacted, which provided protections to tenants against the possibility of unilateral nonrenewal.

Is this unfair to a landlord, such as yourself, when an applicant is approved, ostensibly based upon a satisfactory application, who then becomes the "Tenant From Hell?" Some would say that the landlord's best protection is at the front end of the business relationship, since he/she is given a full and complete opportunity to set out all screening criteria and performing a thorough vetting of the applicant's financial, rental, and criminal background. But once the landlord approves the applicant - presumably because he/she passed the vetting process - they have the right to remain at the space, so long as they don't commit certain material violations, such as nonpayment of rent, breach the rules, rental agreement, state law, or commit certain actions outrageous in the extreme.

Here is how the fixed term tenancy law, found at ORS 90.545 and 90.550, works:

• At least 60 days prior to the ending date of the lease term the landlord must provide to the tenant a proposed new lease, together with a written statement that summarizes any new or revised terms, conditions, rules or regulations.
• The new rental agreement may include new or revised terms, conditions, rules or regulations, if:
• They fairly implement a statute or ordinance adopted after the creation of the pre-existing lease; or
• They are the same as those offered to new or prospective tenants at the time the new proposed lease is submitted to the tenant and for the preceding six-months prior to submission period;
• If there have been no new or prospective tenants during the six-month period, the new lease terms must be same as are customary for the rental market; and
• They are consistent with the rights and remedies provided to tenants under ORS Chapter 90; and
• Do not relate to the age, size, style, construction material or year of construction of the manufactured dwelling [or floating home] contrary to ORS 90.632 (2) (Footnote 1); and
• Do not require an alteration of the manufactured dwelling [or floating home] or alteration or new construction of an accessory building or structure.
• The tenant may accept or reject a landlord's proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord.
• Note that if a landlord fails to submit a proposed new rental agreement as allowed, the tenancy renews as a month-to-month tenancy under the same terms as the prior lease, except that the landlord has the right to increase the rent unilaterally, pursuant to ORS 90.600.
• If the tenant fails to accept or unreasonably rejects a landlord's proposed new rental agreement, the fixed term tenancy terminates on the ending date without further notice and the landlord may take possession through the eviction process, assuming the tenant does not vacate the space and remove the home.
• However, if the tenant surrenders possession of the space prior to the filing an eviction, he/she has the right to enter into a written storage agreement with the landlord, and then has the same rights and responsibilities of a lienholder during an abandonment, i.e. pay storage fees, maintain the space, and sell the home within six months [rather than 12 for lienholders]. See, ORS 90.675 (19).

Conclusion. My suggestion is that if your tenant is continually causing problems, paper your file thoroughly, showing the efforts you've made to work with that person. If there are complaints from other residents, document them. Eventually, the tenant will slip up - doing something that gives you the basis for an eviction. If he is a chronic late payer, consider using the three strikes law, found in ORS 90.630(8). Then find a good landlord attorney and discuss the best method to evict the tenant. You will then be armed with good evidence for the judge or jury to show that you walked the extra mile with this person, but they simply refused to cooperate. And remember that although there are restrictions on the contents of the new lease you offer, it may contain provisions that will give you a better foundation for the eviction. Good luck!

Footnote 1: This specific protection was important to the tenant lobby, since until it was enacted, there was an open question as to whether landlords could impose as a condition upon accepting an applicant who was purchasing an older home, that it must be removed upon subsequent resale. In addition, ORS 90.632 was enacted which permits landlords to expressly require that homes be repaired due to damage or deterioration.

Answer: That is a good question. First, to be clear for our readers, a "security agreement" is any agreement that serves as "security" on the property. For example, a trust deed is recorded on real property, and secures the promissory note. If the note is not paid, the holder can turn to the security, and sell it to satisfy the unpaid indebtedness.

Since manufactured homes are not real property, the document is different, but the concept is the same. A Retail Installment Contract is defined in ORS 83.510(12). Its purpose is to retain a lien upon the manufactured home to secure a buyer's obligations under the contract. Form 2A informs the buyer that the seller/dealer is claiming a security interest in the home for the duration of the contract, and that in the event of default the seller/dealer will have certain remedies to foreclose and/or repossess the home. Upon a buyer's full payment and performance under the Retail Installment Contract, the seller/dealer is required to mail to the buyer good and sufficient instruments to indicate payment in full and to release all security rights in the home.

If the sale transaction is closed in escrow, there is nothing more for the seller to do to secure his/her security interest in the home, as escrow will submit the necessary documents to the Oregon Department of Business and Consumer Services.

However, if the seller/dealer does not close the transaction through escrow, they will have to perform the following steps themselves:

1. Submit to the Department of Consumer and Business Services (DCBS) an application for an ownership document on behalf of the purchaser.

1. The application must be on a DCBS-approved form, and include the following:
   1. The year, manufacturer's name, model if available, and identification number for the home;
   2. Any existing ownership document for the home or, if none, the homes certificate of origin or other document evidencing its ownership;
   3. The legal description or street address for site where the home is or will be placed;
   4. If the home is sited in a manufactured housing community, the name of the community;
   5. The name and mailing address of each person acquiring an interest in the home;
   6. The name and mailing address of each person acquiring a security interest in the home; and
   7. Any other information required by the DCBS by administrative rule.

1. If the seller/dealer is unable to comply with Sec. 2, above, within 25 business days of the sale/closing of the home, he/she must provide a notice of delay to the purchaser. The notice must contain:
   1. The reason for the delay;
   2. The anticipated extent of the delay; and
   3. A statement of the rights and remedies available to the purchaser if the delay becomes "unreasonably extended."[1]
2. Fail to comply with the above could result in the seller/dealer becoming subject to revocation or suspension of their license or being placed on probation by the DCBS pursuant to ORS 446.741.
3. If they fail to comply with Sec. 2, above within 90 days of the sale/closing, they could become subject to criminal penalties under ORS 446.746 (1)(h).
4. However, if the home buyer is not in compliance with the payment terms of their purchase or security agreement with you by the 20th calendar day after the sale/closing, the seller/dealer is not required to perform the steps in Sec. 2 until 25 calendar days after the home purchaser is in compliance with the payment terms. [Note: This does not excuse a seller/dealer from complying with Sec. 3, above, even though the purchaser is late on his/her payments.]

[1] Note: The statute does not define "unreasonably extended," nor does it identify any particular remedies you might suggest. If such a delay occurs, you should contact your own legal counsel, since you do not want to write such a letter to the purchaser identifying their "legal remedies" - that would be up to the purchaser's attorney.