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1. Inadequate response time to a resident's questions.

In an era when customer relations is the new icon of successful marketing it only makes sense to get back to a resident's question or action-item in a timely manner. What is timely? Within 48 hours, at least tell the customer that you are checking on the matter and will have an answer soon. That's better than taking a week with no answer, or worse, forgetting about it.

1. Poor resident relations & communications.

Like timely responses, overall customer communications is important. That includes such basic things as listening. Periodically walk the park just to talk with residents and see how they are doing. Does anyone need special help? Keep a note pad and pen in your pocket. Seek input. Better yet, issue report cards at least twice per year to see how they grade you. Help them coordinate social activities. Host spontaneous events like an ice cream social at the clubhouse. Ice cream is an inexpensive alternative to customers grumbling about invisible management and owners. But it all boils down to something quite simple: treat them like you want to be treated.

1. Lax rules & regulations enforcement.

Irregular enforcement of rules and regulations or poorly written rules can only lead to confusion and trouble. Make sure maintenance violations are quickly handled with the proper notice. But be fair, friendly and firm. If your rules seem to prompt lots of confusion and questions, get someone outside the park to read the rules with an eye to clarity and possible changes.

1. Poor park maintenance.

The visual appeal of your park is essential to both residents and non-residents who drive by your park. Always maintain its "curb appeal." Regularly check for light outages, broken fencing, faded paint and common-area cleanliness. Neglected streets are especially annoying to residents. Of special importance is your entrance. It should look sharp, upscale

and inviting. Invest in flowering plants to add seasonal color. A well-kept park makes necessary rent adjustments easier to accept.

1. Inadequate training of on-site managers.

If your park manager is not familiar with mobile home park residency laws, unintentional violations could result. Staff should be updated on the latest changes. don't assume they know. Training for on-site managers is mandatory. Bring them up-to-date with the latest aspects of insurance, OSHA and health safety issues, worker's compensation laws, Fair Housing and especially Mobilehome Park Landlord/Tenant Laws.

1. Poor marketing.

Like any business, you have to keep an eye on your local competition while you're keeping your park filled. But marketing is more than park fill and advertising. Marketing includes everything from market surveys to community and government relations, from promotions and incentives to get new residents, to good relations with current residents. Good marketing means keeping a close eye on the target audience you want and how you will sell and service them.

7. Mishandling delinquent rents.

Delinquent rents need quick action. Monitor them closely. Mishandling a notice can lead to delays/problems. Listen to a problem to decide if it's permanent/temporary. If it's permanent, act decisively. If temporary, you may want to set up a written payment plan if possible.

8. Getting the wrong insurance package.

Keeping costs down is important in any business, but so is risk management. That means insurance. The key is to look beyond the basic, generic policy and to seek property and general liability insurance with umbrella coverage. You want to insure your park for its actual insurable replacement value. Check the rating of the insurance carriers you are considering. Shop and compare rates/ratings.

1. Inadequate safety & accident prevention programs.

Insurance is not enough. Prevention is just as important. It's all about having a park safe for residents, their visitors and the park staff who serve them. Potholes in roads are unsafe. A child's cheerful bike ride could suddenly be ended by an unseen driver because bushes were not trimmed. Walkways must be well-lighted and free of cracks. Pools must be free of bacterial growth. Workers need equipment and training to avoid body movements that can injure them. Money spent on repairs, signage, equipment, and training is cheap compared to thousands in legal bills, insurance rate increases and time wasted.

1. Insufficient awareness of economic changes.

Like any business you have to cover costs and make a profit. In order to maximize your investment, keep abreast of changing local conditions around your park. An ill-informed decision could make your park unattractive to potential homeowners. For example, if a local plant closes or unemployment suddenly jumps, that's not a good time to raise rents. Even in healthy times, periodic small rent adjustments make more sense than one big increase that finds residents unprepared and prone to action. Subscribe to local newspapers. It's all about staying in touch and informed to make good decisions.

Note: This article orignially was published in MHCO's Community Update

Inadequate response time to a resident’s questions.

In an era when customer relations is the new icon of successful marketing it only makes sense to get back to a resident’s question or action-item in a timely manner.  What is timely?  Within 48 hours, at least tell the customer that you are checking on the matter and will have an answer soon.  That’s better than taking a week with no answer, or worse, forgetting about it.

Poor resident relations & communications.

Like timely responses, overall customer communications is important.  That includes such basic things as listening.  Periodically walk the park just to talk with residents and see how they are doing.  Does anyone need special help?  Keep a note pad and pen in your pocket.  Seek input.  Better yet, issue report cards at least twice per year to see how they grade you.  Help them coordinate social activities.  Host spontaneous events like an ice cream social at the clubhouse.  Ice cream is an inexpensive alternative to customers grumbling about invisible management and owners.  But it all boils down to something quite simple: treat them like you want to be treated.

Lax rules & regulations enforcement.

Irregular enforcement of rules and regulations or poorly written rules can only lead to confusion and trouble.  Make sure maintenance violations are quickly handled with the proper notice.  But be fair, friendly and firm.  If your rules seem to prompt lots of confusion and questions, get someone outside the park to read the rules with an eye to clarity and possible changes.

Poor park maintenance.

The visual appeal of your park is essential to both residents and non-residents who drive by your park.  Always maintain its “curb appeal.”  Regularly check for light outages, broken fencing, faded paint and common-area cleanliness.  Neglected streets are especially annoying to residents.  Of special importance is your entrance.  It should look sharp, upscale

and inviting.  Invest in flowering plants to add seasonal color.  A well-kept park makes necessary rent adjustments easier to accept.

Inadequate training of on-site managers.

If your park manager is not familiar with mobile home park residency laws, unintentional violations could result.  Staff should be updated on the latest changes.  Don’t assume they know.  Training for on-site managers is mandatory.  Bring them up-to-date with the latest aspects of insurance, OSHA and health safety issues, worker’s compensation laws, Fair Housing and especially Mobilehome Park Landlord/Tenant Laws.

Poor marketing.

Like any business, you have to keep an eye on your local competition while you’re keeping your park filled.  But marketing is more than park fill and advertising.  Marketing includes everything from market surveys to community and government relations, from promotions and incentives to get new residents, to good relations with current residents.  Good marketing means keeping a close eye on the target audience you want and how you will sell and service them.

Mishandling delinquent rents.

Delinquent rents need quick action.  Monitor them closely.  Mishandling a notice can lead to delays/problems. Listen to a problem to decide if it’s permanent/temporary.  If it’s permanent, act decisively.  If temporary, you may want to set up a written payment plan if possible.

Getting the wrong insurance package.

Keeping costs down is important in any business, but so is risk management.  That means insurance.  The key is to look beyond the basic, generic policy and to seek property and general liability insurance with umbrella coverage.  You want to insure your park for its actual insurable replacement value.  Check the rating of the insurance carriers you are considering.  Shop and compare rates/ratings.

Inadequate safety & accident prevention programs.

Insurance is not enough.  Prevention is just as important.  It’s all about having a park safe for residents, their visitors and the park staff who serve them.  Potholes in roads are unsafe.  A child’s cheerful bike ride could suddenly be ended by an unseen driver because bushes were not trimmed.  Walkways must be well-lighted and free of cracks.  Pools must be free of bacterial growth.  Workers need equipment and training to avoid body movements that can injure them.  Money spent on repairs, signage, equipment, and training is cheap compared to thousands in legal bills, insurance rate increases and time wasted. 

Insufficient awareness of economic changes.

Like any business you have to cover costs and make a profit.  In order to maximize your investment, keep abreast of changing local conditions around your park.  An ill-informed decision could make your park unattractive to potential homeowners.  For example, if a local plant closes or unemployment suddenly jumps, that’s not a good time to raise rents.  Even in healthy times, periodic small rent adjustments make more sense than one big increase that finds residents unprepared and prone to action.  Subscribe to local newspapers.  It’s all about staying in touch and informed to make good decisions.

Note:  This article orignially was published in MHCO's Community Update

Answer. I remember writing this provision several years ago, and it has survived the test of time - in other words - to my knowledge it has never been set aside or otherwise ruled illegal or unconscionable by any Oregon courts.

The genesis of this provision relates to the change in Oregon law several years ago that prohibited landlords from imposing a "removal on resale" condition when consenting to the sale of older homes in their communities. Essentially, the condition said that if when the resident sought to sell the home to a new buyer, the landlord could consent, but could add the condition that the home had to be removed on resale. In theory, this was designed to permit landlords to incrementally upgrade the age of the homes in their communities.[1]

The law, prohibiting this practice, is found in ORS 90.680(12) which provides that:

A landlord may not, because of the age, size, style or original construction material of the dwelling or home or because the dwelling or home was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code as defined in ORS 455.010:

(a) Reject an application for tenancy from a prospective purchaser of an existing dwelling or home on a rented space within a facility; or

(b) Require a prospective purchaser of an existing dwelling or home on a rented space within a facility to remove the dwelling or home from the rented space.

The quid pro quo for landlords permitting this legislation was twofold:

• A law that expressly allowed landlords to impose maintenance requirements to the exterior of homes (ORS 90.632);
• A law providing that the failure to enforce the maintenance provision did not constitute a waiver of the right to do so in the future. See, ORS 90.414(1)(c).[2]

While these laws worked well for the exterior of older homes, they did not address the interior, where typically, landlords could impose no updating requirements. However, ORS 90.740 (Tenant Obligations), provided for several things I believed we could incorporate into the MHCO Rental and Lease Agreements. Among other things, the statute provides that residents must:

• Keep the dwelling or home, and the rented space, safe from the hazards of fire;
• Install and maintain in the dwelling or home a smoke alarm approved under applicable law;
• Install and maintain storm water drains on the roof of the dwelling or home and connect the drains to the drainage system, if any;
• Use electrical, water, storm water drainage and sewage disposal systems in a reasonable manner and maintain the connections to those systems;

And since ORS 90.630(1)(a) provides that '_the landlord may terminate a rental agreement *** if the tenant: (a) Violates a law or ordinance related to the tenant's conduct as a tenant... " I felt it was not unreasonable to require that if the resident made any modifications to the home or its heating, cooling or electrical systems, they must comply with all local, state and federal codes and regulations in existence at the time of the modification."

I then consulted with one or more professional inspectors who specialize in manufactured homes, to ask if they could inspect the interior of the home and vet these issues. I was assured they could.

Lest your resident argue that neither they, nor their buyer, wants to pay for this, I would respond that this requirement is not just for their safety, but the rest of the Park's residents. If the home should catch fire, the conflagration could endanger others as well as them.

Lastly, it is my position, which I have vetted with others, that notwithstanding the ORS 90.680(12) proscription against imposing a "removal on resale" condition, it does not apply if the resident has made changes '_to the original construction material of the dwelling or home *** [that] was built prior to adoption of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code... ."

In other words, it is my belief[3] that if a resident has made changes to the heating, cooling, or electrical systems inside their home, he or she is no longer protected against the prohibition against "removal on resale" condition. So your recalcitrant resident has two choices: (a) Either consent to the interior inspection by a professional, to make sure it is "safe from the hazards of fire" or (b) You can impose a "removal on resale" requirement. And by the way, since you can impose, as a condition of approval, that the new resident has fire and liability insurance, you will want to consider imposing both conditions, and becoming a co-insured on the liability policy. Good Luck!

[1] Tenant lawyers argued that the provision was illegal, since it violated the law prohibiting termination of MHP tenancies without cause. It was the result of this standoff that resulted in the compromise legislation.

[2] When these laws were being negotiated, non-waiver was important to several landlords who had fixed income elderly residents whose homes were in need of exterior maintenance or painting. While they were willing to forego enforcing the maintenance requirements so long as the aged resident was living there, they did not want to waive the right to do so later, if the home was sold, or transferred by inheritance.

[3] You should verify this with your own legal counsel. MHCO's Q&A articles should not be relied upon as "legal advice".

Answer:  The answers to some of your questions can and should be found in the rules and regulations. For example, addressing whether attachments and outbuildings stay or are removed.[1] It is problematic to me to permit a resident to make such additions at the outset, without addressing what happens when the home is put up for sale.  If additions have been made for which consent was never obtained, or which do not conform to the applicable building codes, management should move quickly, since acceptance of rent with knowledge of the noncompliance could lead to waiver.

Assuming that the attachments and outbuildings are in a state of disrepair, SB 277 provides a remedy to management at any time, including the time of sale. However, without knowing the exact nature of these “improvements” it is hard to know whether insisting upon complete removal is appropriate or legal. 

Also, much depends upon other factors. How much will this cost the resident? How long will it take? Are the “improvements” not really beneficial to the space, and detract from the appearance of the whole area? Are they code-compliant, or can they be made so? As discussed below, SB 277 continued parts of the earlier disrepair/deterioration law found in ORS 90.632, but tightened up portions of it, due to resident complaints about abuses.[2] And interestingly, it now includes reference to “aesthetic” and “cosmetic” improvements, which may be helpful in your situation.

MHCO has significantly changed its current form No. 55 to address the changes in the new law. The major issue going forward is for managers and landlords to be able to recognize when to use Form No. 55 to address disrepair and deterioration conditions, versus Form No. 43C, which is appropriate for violations relating to maintenance and appearance of the space.

If the disrepair or deterioration to the exterior of the home or related structures creates a risk of imminent and serious harm to dwellings, homes, or persons in the Community (e.g. dangerously unstable steps, decking or handrails), there is a 30-day period to repair.

For all other (i.e. non-dangerous) conditions, the minimum period to cure is now 60 days.  As before, the new Form 55 provides a place for landlords and managers to specifically describe the item(s) in need of repair.

Trap: If there is imminent risk of harm, and the landlord/manager intends to give the tenant 30 days rather than 60 days, SB 277A requires that they not only describe the item(s) in disrepair, but also describe the potential risk of harm.  There is little question but that the failure to do so would invalidate the notice. The new Form 55 prompts users to describe both the violation and the potential risk of harm.

Tip: The new Form 55 contains a prompt at several places to attach additional pages, documents or photos, if doing so would be helpful in identifying the disrepair or deterioration, and the necessary repair. Remember, you cannot expect the tenant to be a mind reader – just because you know the nature of the problem and the appropriate repair, does not mean the tenant is on the same page. If there is any ambiguity in the notice, a court would likely rule in favor of the tenant. Why? Because the landlord/manager filled out the Notice and had the ability at that time to draft it with sufficient clarity. 

SB 277A now provides that at the time of giving a prospective purchaser the application and other park documents, the landlord/manager must also give them the following:

• Copies of any outstanding notices of repair or deterioration issued under ORS 90.632;
• A list of any disrepair or deterioration of the home;
• A list of any failures to maintain the Space or to comply with any other provisions of the Rental/Lease Agreement, including aesthetic or cosmetic improvements; and
• A statement that the landlord/manager may require a prospective purchaser to complete the repairs, maintenance and improvements described in the notices and lists provided.

Tip: Note that the new law combines not only the original ORS 90.632 notices relating to damage and deterioration of the home or structures, but also a list of failures to maintain the space and other defaults, including aesthetic or cosmetic improvements. This may or may not include 30-day curable notices under ORS 90.630 for failure to maintain the space. But in both cases (i.e. defaults relating to structures, and those relating to the space), the new tenant appears to get the six-month period to comply. It may be that if the “improvements” are aesthetically an eyesore, SB 277A may be of use in getting them either cleaned up or removed.

This represents and interesting shift in Oregon law, and possibly for the better. Many parks historically gave “resale compliance notices” to tenants who were placing their homes up for sale. However, until now, there was some question whether a landlord could “require” as a condition of resale, that the existing tenant make certain repairs – absent having first sent a 30-day notice.[3] Now, under the new version of ORS 90.632, it appears landlords may make that list, and let the tenant/seller know that unless the work is completed before sale, it will be given to the tenant’s purchaser upon application for tenancy.

So, if the landlord/manager accepts a prospective purchaser as a new tenant, and notwithstanding any prior landlord waivers of the same issue(s), the new tenant will be required to complete the repairs, maintenance and improvements described in the notices and lists.

Under Section (10) of SB 277A, if the new tenant fails to complete the repairs described in the notices within six months from commencement of the tenancy, the landlord “may terminate the tenancy by giving the new tenant the notice required under ORS 90.630 or ORS 90.632.”  This appears to say that a new tenant who fails to complete the items addressed in the notices and lists within the first six months, will thereafter be subject to issuance of a curable 30-day or 60-day notice to complete the required repairs. Accordingly, this is how the new MHCO Form 55 will read.

[1] Caution should be exercised in drafting, however.  If the rule says the “improvements stay” but they are an eyesore, management may be left with more than it bargained for. So whether it stays should be phrased as an option for management, if and when the time comes.

[2] Without commenting on the nature or cause of the complaints, suffice it to say that when the press gets ahold of a tenant/park dispute, the legislators are not far behind, and the end result is not usually helpful to landlords. The not-so-subliminal message here is that such disputes are better resolved quietly and quickly, lest they become a cause célèbre.

[3] This is because ORS 90.510(5)(i) provides that the rental or lease agreement for new tenants must disclose “(a)ny 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. Those conditions must be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;

The thought "Stick with the MHPs, Stevens" may have occurred to you. There is a point to the Camp David Accords reference. The point is, President Carter would not settle for anything other than peace. MHP park owners & managers can borrow this theme. Eviction (one could argue a violent action), is a last resort. Peace in the valley, while not easy, may be less stressful for manager and residents, as well as a better solution for all.

Key Points:

• It is stressful for managers and owners to deal with the same problems month in and month out, which might lead to burn-out. Burn-out may lead to a manager quitting or worse, just not giving the job 100%

• Budget: One manager sold life insurance for a national company, prior to being a park manager. In his training to sell life insurance, he was told the first thing to do is a monthly budget with the prospect. This way, the prospect quickly ascertains there is money to buy life insurance as long as they stick to a budget. Do a budget for the chronically late residents. Perhaps they truly cannot afford to live on the property.

• Earn More: In this full employment economy, it is reasonable to expect a struggling resident to ask for a raise, ask for more hours or get a second job. don't assume the resident realizes this.

• Resolve to take action on any resident that is consistently using up the manager's time and company resources with no resulting progress.

• What MHP projects and initiatives are delayed or not getting sufficient attention (buying homes, marketing homes, green initiatives, resident relations), because of time spent on this handful of residents?

• The residents are stressed too, when they are delinquent. Maybe forcing a resolution ultimately helps them to figure out what it will take for them to continue living in the park.

Gray Gardens Gail hails back to the movie "Grey Gardens":

It was about the once (but no longer) wealthy Bouvier mother and daughter that were called out by the local health department for the enormous number of cats in their home and on their property that had created a public health hazard. What made this "cat house" newsworthy is, the occupants were Jackie Kennedy's and Lee Radziwill's aunt and cousin, both of whom were suffering from mental health issues. And the "home" was a mansion in East Hampton, Long Island. The filth from the cats, the garbage and lack of litter boxes in the mansion made the property a fixer-upper extraordinaire. The decrepit mansion was purchased and beautifully restored, and in December 2018, it sold for $15.5 million.

Who among us does not have or had a Grey Gardens Gail in our parks? Not only is there no reasoning with Gail, there is usually no emergency contact person, let alone someone famous and rich to help this resident. To compound the dilemma, the government officials do not want to get involved. In Grey Gardens Gail's case, filing an eviction might be the only way to get the residents' attention and ideally, cooperation. This is a health issue for the resident, the animals and the property.

Carmen Sans Communicato:

Carmen's deal is she always pays her rent but is chronically delinquent. In addition, Carmen has a phone and face-to-face conversation phobia that often leads you to wondering. That is to say, she does not care to, want to, or cannot meet with the manager. She does not take the manager's calls (is this really a phobia and a mental health issue?). What to do? With Carmen, the only way to get the real story is to file an eviction. If the court allows the eviction, then Carmen will have to move. At the very least, the manager just might get a new application from Ms. Carmen Sans Communicato. This way, the manager can determine if Carmen can afford to live in the park.

Deadly Disease Donna:

Have you had a Deadly Disease Donna who has been informed of every non-profit, church and government agency under the sun as resources for assistance? But Donna doesn'twant to ask for help. Meanwhile, there is a healthy adult living in the home who does not work. Maybe the healthy adult is taking care of Donna. Recently, a new company bought Donna's park. The new owner has a policy of "No Pay, No Stay". What the new owner discovered is, Donna and her family actually moved into the home of the former owner for a time. That is, until the former owner couldn'ttake it anymore. Then Donna and her brood moved back to the park. The new owners commenced to send to Donna the proper legal Notice and an attorney has been hired to file for eviction. It is doubtful this will end up in an eviction, though. Donna paid off all but $150, once the Notice arrived. The next step is that two relatives will co-sign the lease and guarantee rent payments. This is a good outcome for all.

Joanne Stevens is a National Mobile Home Park Broker with NAI Iowa Realty Commercial, a Berkshire Hathaway Company.

Email: joannestevens@iowarealty.com

Website: www.joannestevens.com

Phone: (319) 310-0641

HB 3443 adds “bias crime” as defined by ORS 147.380, ORS 166.155, and ORS 166.165 to a number of different statutes in the ORLTA. The term “bias crime” is added to all statutes that previously addressed tenant-impacts of domestic violence, sexual assault and stalking. Terminations for domestic violence, sexual assault, bias crime, and stalking are extremely detailed. Landlord should consult their attorney before taking any termination action regarding allegations of the aforementioned criminal acts.

ORS 90.100 – The term “bias crime” is added to the ORLTA definitions section. A bias crime is defined as the commission, attempted commission, or alleged commission, of an offense as described below:

ORS 166.155 (1) A person commits a bias crime in the second degree if the person:

(a)  Tampers or interferes with property, having no right to do so nor reasonable ground to believe that the person has such right, with the intent to cause substantial inconvenience to another person because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin;

(b) Intentionally subjects another person to offensive physical contact because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin; or

(c)  Intentionally, because of the person’s perception of race, color, religion, gender identity, sexual orientation, disability or national origin of another person or of a member of the other person’s family, subjects the other person to alarm by threatening:

(A) To inflict serious physical injury upon or to commit a felony affecting the other person, or a member of the other person’s family; or

(B) To cause substantial damage to the property of the other person or of a member of the other person’s family.

ORS 166.165 (1) A person commits a bias crime in the first degree if the person:

(a)  Intentionally, knowingly or recklessly causes physical injury to another person because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin;

(b) With criminal negligence causes physical injury to another person by means of a deadly weapon because of the person’s perception of the other person’s race, color, religion, gender identity, sexual orientation, disability or national origin; or

(c)  Intentionally, because of the person’s perception of another person’s race, color, religion, gender identity, sexual orientation, disability or national origin, places another person in fear of imminent serious physical injury.

ORS 90.325 is amended to clarify that tenants may not be held responsible for damages to the premises caused by the perpetrator of a bias crime. To avoid liability for damage the tenant may be required to provide verification that the tenant or a member of the tenant’s household was a victim of a bias crime.

ORS 90.445 is amended to clarify that perpetration of a bias crime against a household member who is also a tenant is grounds for 24-hour termination notice. The landlord may evict the perpetrator while still leaving other tenants on the lease. If the perpetrator of the bias crime does not leave the premises, the landlord may seek a court order to remove them under ORS 105.128 without terminating the other tenants in the unit.

ORS 90.449 is amended to state that a landlord may not terminate or fail to renew a tenancy, serve a notice to terminate a tenancy, bring or threaten to bring an action for possession, increase rent, decrease services or refuse to enter into a rental agreement with:

• A person who is or has been a victim of a bias crime;
• A person who has violated the rental agreement or the provisions of ORS 90.449 because they have been the victim of a bias crime;
• Because of criminal activity or emergency response related to a situation in which the tenant or applicant is a victim of a bias crime.

Additionally, a landlord may not impose different rules, conditions or standards or selectively enforce rules, conditions or standards against a tenant or applicant on the basis that the tenant or applicant is or has been a victim a bias crime.

However, landlords may terminate the tenancy of a victim of a bias crime if the landlord has previously given the tenant a warning about the behavior of the perpetrator and:

• the tenant has allowed the perpetrator to remain on the premises while an imminent or actual threat to others; or
• the perpetrator is an unauthorized occupant, and the tenant has allowed them to remain on the premises without the permission of the landlord.

If a tenant mounts a successful defense to an eviction action under ORS 90.449 the tenant will not be entitled to a prevailing party fee and/or attorney fees costs or disbursements if it the landlord can demonstrate

• that at the time the action was initiated the landlord did not know, or have reason to know, that the action was based on a bias crime incident; and
• upon discovering that the action was based on a bias crime incident, the landlord promptly removed all others except the perpetrator from the action.

ORS 90.453 is amended to:

• add “bias crime” to the definition of non-perpetrating immediate family members of a crime victim;
• add the phrase “employee of the Department of Justice division providing victim and survivor services” to the definition of a “qualified third party;”
• include the phrase “a copy of a federal agency or state, local or tribal police report regarding [a] bias crime” to the definition of “verification;”
• expand the definition of “victim service providers” to include nonprofit agencies that address bias crimes; and
• provide that a tenant who wishes to terminate their own lease due to being the victim of a bias crime needs to provide either a valid order of protection or verification of a bias crime committed against the tenant within 90 days of the self-termination notice.

The Qualified Third-Party Verification Form under ORS 90.453(3) has also been amended to add “bias crime” to the list of harms against a tenant or member of their household.

ORS 90.456 specifies that the tenancy will continue for any tenants who have not been removed for perpetrating a bias crime or have not been released from the lease due to being a victim. Fees, deposits, and prepaid rent for victims and perpetrators are to be accounted for at the time the tenants surrender possession.

ORS 90.459 adds “bias crime” to the list of harms for which a tenant may provide actual notice and request a change of locks. Verification is not required. If the perpetrator is also a tenant the landlord must see a court order removing the perpetrator before changing the locks.

ORS 90.767 is amended to specify that unless specified in a mediation policy created under this statute, or agreed to by all parties, no one, except the victim, may initiate mediation of a dispute regarding allegations of a bias crime.

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

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

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

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

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

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

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? My sister turned 55 last year, and if she were to move into a typical senior community, she would expect the amenities she has 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 shuffle board) 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 IssuesWe 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 in order 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 provide assistance to 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

An initial question a community owner might have is, "How about my pre-existing community, does it need to comply with ADA issues?" Answer: "It depends." If your community pre-dates the ADA statute, and the community has not gone through any significant renovations (determined on a case-by-case basis), then the community may be "grandfathered in" in most cases. However, there can still be considerations of "reasonable accommodation" and "readily achievable barrier removal" under the ADA that could require a community owner to make modifications to existing structures and to make existing buildings "accessible" to the disabled. There may be no "grandfathering in" under these provisions of the ADA. In addition, if the community has undergone substantial alterations/renovations, this could also trigger ADA compliance.

The next question is whether a manufactured home community is a "place of public accommodation." The ADA defines a "public accommodation" to be "a private entity that owns, leases (or leases to), or operates a place of public accommodation." Examples of places of "public accommodation" include: places of lodging; establishments serving food or drink; places of exhibition or entertainment; places of public gathering; sales or rental establishments; service establishments; stations used for public transportation; places of public display or collection; places of public recreation; places of public education; social service center establishments; and places of exercise or recreation.

Does a manufactured home community fit under these descriptions? Based on discussions with ADA experts, the typical community does not appear to "fit" under any of the enumerated examples of a "public accommodation," assuming the community's facilities are only open for the sole use and enjoyment of the community's residents, rather than the "general public." In some cases, however, a community's clubhouse and office could be determined to be "public accommodations" as they are generally "opened to the public." In addition, the community's office is necessarily "opened to the public" as persons, not otherwise residents of the community, are allowed in and, in fact, are invited in to inquire about available spaces and/or homes in the community.

If the community has "public accommodations" which have "barriers" to "handicap access," then the next consideration is whether the "removal of the barrier" is "readily achievable." The ADA generally defines "readily achievable" as easily accomplished and able to be carried out without much difficulty or expense. 42 U.S.C.S. _ 12181(9). Federal courts have developed several factors in determining what is "readily achievable": (1) nature and cost of the removal; (2) overall financial resources of the facility or facilities involved; (3) number of persons employed at such facility; (4) effect on expenses and resources; (5) impact of such action upon the operation of the facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) type of operation or operations of the covered entity, including composition, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. Colorado Cross Disability Coalition v. Hermanson Family Ltd. Pshp. The community however will bear the ultimate burden to prove that the barrier removal is not readily achievable. This will be determined on a case-by-case basis for each individual community.

So, how do you lessen the chance of your Community becoming a "target" of an ADA lawsuit? There are no "bright lines" as to whether a community has ADA issues or not. Since an "ounce of prevention is worth a pound of cure," the prudent community owner might be best served by hiring a knowledgeable ADA Consultant to review and comment on whether the community has any ADA issues and how they should or could be addressed. Another, and more conservative approach would be to simply make sure that all of the community facilities are "ADA compliant," even if, technically and legally, you may not be required to do so. Little things can make a big difference in your community. Examples of ADA compliance include: levers on the entrance doors; levers on bathroom doors and fixtures; bathroom fixtures at proper height; proper bathroom accessories; doorways that accept wheelchair access; bathrooms that accept wheelchair access; counters at correct height for wheelchairs users; alternatives (ramps/elevators) to steps into the clubhouse and office; acceptable transitions (no lips) at doorways (interior and exterior); handicap community and van access; acceptable transitions (commonly referred to as "curb cuts") to sidewalks at street junctions and handicap community; and acceptable inclines from community areas to public accommodations, to name a few.

Your ADA consultant can walk your community and let you know what facilities do and do not comply with ADA. Making the necessary improvements will be money well spent, and potentially "ward off" expensive litigation, which litigation, in all probability, will not be covered by your general liability insurance policy. You might also want to turn this into a "PR plus" for your community - i.e., tell your residents about the improvements after they are done! However, such actions may not be right for every community. The community owner should first discuss ADA considerations with its legal counsel to determine what the right course of action under the particular circumstances.

Rob Coldren is a founding partner of the MHI-member law firm of Hart, King & Coldren in Santa Ana, Calif. For over three decades, Mr. Coldren's practice has emphasized representation of mobilehome parks, recreational vehicle parks, as well as park owners and managers. He can be reached at rcoldren@hkclaw.com. John Pentecost is a partner with the firm and specializes in property rights and the law as it pertains to the manufactured housing industry. He may be reached at jpentecost@hkclaw.com. Both can be reached by phone at (714) 432-8700.

1. What does mediation mean? Mediation is an alternative dispute resolution process that is different from going to court and having a judge (or jury) pick a winner and loser by determining the facts and applying the law to the facts. Mediation is also different from arbitration. At an arbitration, the parties typically pick a person (usually an attorney) to act like a judge and determine the facts and apply law. At an arbitration there is also a winner and a loser. 

In mediation, the parties typically pick a third party neutral who will meet with the parties to help them find a solution to resolve a dispute. Because mediation requires the agreement of the parties to come to a resolution, it is not always successful. Mediation does not limit a party’s ability to file a lawsuit or arbitration.

In my experience, the cases that resolve at mediation are where both parties come with an open mind, are willing to listen and can consider compromise in order to avoid the cost and hassle of litigation. 

In my experience, the cases that don’t resolve are usually because one of the parties has unrealistic expectations or opinion of their case, or that the matter should move forward based on “principle.” 

2.   When is mediation required? Mediation is required for any non-exempt issues (see question 3) involving compliance with the rental agreement or non-exempt conduct of a landlord or a tenant within the facility. Please note that a facility is a manufactured home park or a floating home marina. Mediation can be initiated regarding a non-exempt dispute between a landlord and a tenant or between two or more tenants. Note that if the dispute is between two or more tenants, mediation must be initiated by the landlord. 

3.   What types of disputes are exempt (i.e. not subject to mediation)? The following disputes are not subject to mediation:

(a) Facility closures consistent with ORS 90.645 or 90.671; 

(b) Facility sales consistent with ORS 90.842 to 90.850; 

(c) Rent payments or amounts owed, including increases in rent consistent with ORS 90.600;

(d) Termination of tenancy pursuant to ORS 90.394 (failure to pay rent), 90.396 (24 hour notices), or 90.630(8) (three strike provision); 

(e) A dispute brought by a tenant who is alleged to be a perpetrator of domestic violence, sexual assault or stalking under ORS 90.445 when the dispute involves either the allegation or the victim of domestic violence, sexual assault or stalking; 

(g) A dispute involving a person not authorized to possess a dwelling unit as described in ORS 90.403; or 

(h) A dispute raised by the landlord or tenant after the tenancy has terminated and possession has been returned to the landlord (including ORS 90.675 (abandonments). 

4.   How is mediation initiated? Mediation may be initiated by a tenant or a landlord. If a tenant or landlord initiates the mediation process, then the parties are required to participate (but see questions 7 and 8 below). If there is a dispute between or among tenants, a landlord must initiate mediation.  

5.   What if mediation is not currently included in my rental agreement? A landlord and/or tenant is required to mediate regardless of whether a rental agreement currently provides for mediation. If a rental agreement does not currently have such a process, SB 586 requires a landlord to unilaterally amend the rental agreement to include mediation. Specifically, ORS 90.510 (5) (what is required to be included in rental agreements) is amended to include in a rental agreement a section for mandatory mediation of disputes that states: “that the tenant or the landlord may request mandatory mediation of a dispute that may arise concerning the rental agreement or the application of this chapter, and the process by which a party may request mediation, including a link to the web site for the Manufactured and Marina Communities Resource Center with additional information about mandatory mediation of disputes.”

 6.  Who facilitates a mediation? Mediation may be requested through either: (1) Manufactured and Marina Communities Resource Center (“MMCRC”); or (2) a local Community Dispute Resolution Center (“CDRC”); or (3) a mutually agreed-upon and qualified mediator. Each party must cooperate with the CDRC or designated mediator in scheduling a mediation session at a mutually agreeable day and time, within 30 days of the initiation of mediation. Each party must attend at least one mediation session. 

7.   Who has to participate in the mediation (i.e. does it have to be the owner)?  A landlord can designate a representative to participate in the mediation on the Landlord’s behalf (including a non attorney). The representative, however, must have the authority to resolve the dispute in the mediation.  Note that a tenant can also designate a representative.

8.   Do I have to reach an agreement in the mediation?  No. Neither party is required to reach an agreement in a mediation. Each party must attempt to mediate the dispute in “good faith.”  The law specifically says that the parties are not required to: (1) reach an agreement on all or any issues in the mediation; (2) participate in more than one mediation session; (3) participate for an unreasonable length of time in a mediation session; or (4) participate if the other party is using the mediation to harass the party or is otherwise abusing the duty to meditate.

9.   What would happen if a party failed to meditate in good faith? If a party fails to meditate in good faith by abusing the right to require mediation or uses mediation to harass the other party, the aggrieved party may recover an amount equal to one month’s rent from the violating party. Please note that this is a two way street. In addition, the other party has a defense to any claim brought by the violating party over the dispute involved in the mediation request, and may have the claim dismissed.

10. Can I use an admission in mediation at a subsequent trial? Conversely, can something I say be used against me? No. Mediation, and what is said during mediation, is confidential. Any statement made in a mediation is inadmissible. The purpose is to have an honest dialogue in order to encourage a settlement. Additionally, a mediator cannot be called as a witness.

11. 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) before the 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. 

12. 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. 

13. 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. 

14. 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.

15. 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 Center to employ one attorney to provide direct legal services to statewide park and marina residents on matters arising under the Oregon Residential Landlord Tenant Act.

16. 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.

17. When does all of this go into effect? The effective date of SB 586 is January 1, 2010.