What Happened at the February 22, 2019, MH Coalition Meeting?

This meeting was held in Salem and John DiLorenzo facilitated.

The MH Coalition came to an agreement on all fronts at what was, we can now say, the final MH Coalition meeting for this set of issues for proposed legislation during the 2019 session.

I can’t begin to tell you how high the stakes were. In January, our proposed marina issues became a Senate bill – SB 586 to be exact!! But since the MH Coalition was still debating some key parts and because the person who was assigned to us to draft the actual legal language was new to the process – everything was delayed and our bill was at risk of not progressing further if we didn’t come to a place of agreement at this February 22nd meeting.

It was critical that the MH Coalition find resolution on the final issue – how to deter tenants from committing minor marina/park rule violations.

Keep in mid that, currently, the law states that tenants can be evicted for a minor rule violation such as parking in the wrong parking space.

We seek to change that. No one should lose their home because they parked in the wrong space once.

So we created solutions to address this in our bill by restricting noncompliance evictions only for “Material Violations” of the lease – for example: nonpayment of rent, being a danger to the community, etc. MAJOR lease noncompliance issues.

Which left minor rule violations unaddressed and without any “teeth” to hold a tenant liable for following the marina rules. Landlords needed something to deter tenants from committing minor rule infractions if they were going to allow us to change the law to allow evictions for major lease infractions.

The three options on the table to deter tenants from committing minor rule violations were:

3 Strikes and You’re Out rule – if a tenant commits a minor rule violation such as parking in the wrong parking space on three separate occasions and was served notice on each occasion (but also corrected it after the first 2 notices) within a 12-month period, then the 3rd notice would trigger the eviction process and the tenant would not have a chance to correct the 3rd violation. Floating home tenancies in California operate under a similar law.
Fees for Minor Violations – if a tenant commits a minor rule violation such as parking in the wrong parking space, then a landlord can charge a fee as long as that fee is listed in the rental agreement AND allowed by ORS 90.302. The problem is that, by law, a landlord cannot change a rental agreement to add the ability to charge fees. So this option would allow landlords to unilaterally amend rental agreements already in place only for the purpose of being able to legally capture fees for minor violations. There are limits: minor rule violation fees can only be charged for about 7 limited things already listed in ORS 90.302 (more on those below).
Do nothing. Keep the law as is and if a tenant commits a minor rule violation such as parking in the wrong parking space, the landlord can serve them an eviction notice. YIKES!!

The tenants debated a TON about this one off-line in multiple conversations in preparation for the February 22nd meeting. We took this last bit of negotiations very seriously. This has serious consequences for changing the law and there are serious consequences if we do not change the law.

We had earlier in the month decided that option 1 was likely to be abused the most since eviction was at stake. And we knew we need to do something to protect tenants from living in fear of being evicted for silly infractions, so we could not choose option 3, doing nothing.

So we negotiated and debated every aspect of option 2 – fees – until we were comfortable enough that it was as good as it could be and a definite improvement on what we have.

Our primary areas of concern centered around the potential abuse of fees and that a landlord did not have to prove anything, just send a fee notice. However, currently, the landlord does not have to prove you committed the minor rule violation to place you in an eviction hearing anyway. So, while the fees do not solve every possible abuse scenario, we did have a lot of discussion about ways to mitigate that risk of abuse.

The other area of concern was the hierarchy or order of the application of payments – we wanted the same protections as apartment tenants listed in 90.220(9). If you’ll recall from the last post, ORS restricts the order of the application of an apartment tenant’s payment and makes sure that landlords cannot apply a tenant payment to a fee before they apply it to rent owed. But this law does not apply to marina tenancies. However, we found comfort in realizing that ORS 90.302(3)(a)(E), which does apply to marina tenancies, prohibits landlords from deducting a noncompliance fee from a rental payment.

This left us to wrestle with only the potential for abuse of landlords charging fees. Many good ideas were generated from these outside tenant sessions to help reduce the risk of abuse.

However, in order to fully vet those ideas, we needed more time, which we did not have if we wanted our bill to be voted on in this legislative session. So, with the entire bill at risk – every issue we had already greed upon over the previous 2 years of work. So we came to agreement that this item is better than what we have, but we will propose improvements to it in the next legislative session.

Our bill proposes to allow park and marina landlords to unilaterally amend leases ONLY to be able to charge tenants fees for these things listed in ORS 90.302:

The non-compliance fees allowable by ORS 90.302, IF IF IF they are also described in your lease fall into 3 main areas:

(1) Fees authorized by other statutes.

(a) Late rent payments, ORS 90.260

(b) NSF checks, ORS 30.701

(d) Facility pet rule violation, ORS 90.530

(e) Lease-break fee (contract law)

(2) Noncompliance with the rental agreement, as specified:

(a) The late payment of a utility or service charge that the tenant owes the landlord as described in ORS 90.315 (Utility or service payments).

(2) Failure to clean up pet waste from a part of the premises other than the dwelling unit.

(3) Failure to clean up the waste of a service animal or a companion animal from a part of the premises other than the dwelling unit.

(4) Failure to clean up garbage, rubbish and other waste from a part of the premises other than the dwelling unit.

(5) Parking violations.

(6) The improper use of vehicles within the premises.

(7) Smoking in a clearly designated nonsmoking unit or area of the premises. The fee for a second or any subsequent noncompliance under this subparagraph may not exceed $250. A landlord may not assess this fee before 24 hours after the required warning notice to the tenant.

(8) Keeping on the premises an unauthorized pet capable of causing damage to persons or property, as described in ORS 90.405 (Effect of tenant keeping unpermitted pet). The fee for a second or any subsequent noncompliance under this subparagraph may not exceed $250. A landlord may not assess this fee before 48 hours after the required warning notice to the tenant.

(3) Other:

(a) Attorney fees authorized by 90.255

(b) Applicant screening charges per ORS 90.295

(d) Credit card processing fees

However, I was able to successfully make an argument to the MH Coaltion landlords and tenants such that fees cannot be charged to marina tenants for item #5: Parking Violations.

My argument is that, unlike park tenants who have driveways and carports which can fit multiple vehicles, marina tenants are at risk of parking violation every time they enter the marina in a vehicle because we only have common areas to park in. Subjecting marina tenants to fees for parking violations would risk them owing money when a service vehicle (house keeping, contractor, friend, guest, etc.) parks in a common area in violation of marina rules, as well as, every time we park. There is no safe-haven for parking because we have no private driveway or parking available to us. ALL marina parking is located in a common area subject to potential parking violations.

So, the MH Coalition agreed that marina landlords cannot charge fees for minor parking violations. The ability of a landlord to charge parking violation fees listed in ORS 90.302 (3)(b)(A) will only apply to park tenants.

And this ability for marina landlords to charge fees for minor noncompliances (with the exception of parking) will be in exchange for our ability to remove the language from the law which allows landlords to evict tenants for minor rule infractions.

And with that, the MH Coalition came to full agreement on our issues and wrapped up our meetings for this legislative session.

The bill will now be amended to reflect our new decisions and then work its way through the Oregon Legislature.

The next steps are to get the Legislative Counsel to draft our issues into bill language to amend our bill from January. Have our bill heard in a Senate work group, then voted and passed in the full Senate. Then onto the House for the same. Then back to the Senate for final voting to approve any amendments that the legislative counsel did not finish in time for the previous Senate vote!

It is important to note that Move-in, Move-out, facility use, and membership fees are not listed as an allowable fee by ORS and are therefore not legal to charge a tenant.