What Happened at the February 6, 2019, MH Coalition Meeting?

This meeting was held in Salem and John VanLandingham facilitated.

INFORMATION SHARING:

We discussed SB 608 in detail. This is not our bill. It is the bill sponsored by Rep. Kotek and covers rent caps among other items.
- Part 1 pertains to “double tenancies” – in other words, for floating home owners who rent their floating homes to tenants. You can only evict your tenant with good cause after the 1st year of occupancy. There are a few exceptions to this such a homes newer than 15 years among other reasons.
- Part 2 is a rent cap. No more than once a year, a marina landlord can raise the rent but no more than 7%, plus the Consumer Price Index (which is around 3% right now).
- This bill will pass. It may pass with an emergency clause which simply means that, instead of going into effect as law on January 1 of the following year, it will go into effect in 90 days from the signing.
- We spent quite some time discussing this because the Landlords don’t like being limited by how often and by how much they can raise rents on their park tenants and floating home owners.
- But we cannot weigh in on their bill.
Our Bill SB 586 Schedule:
- Jan 14: The bill was introduced
- Jan 17: It was Scheduled for review by various groups – tax, finance and revenue, environmental
- February 22: We will meet one last time to come to final agreement.
- Early March: It will likely have a hearing – Senator Fahey is pressing for a hearing of it. We need to have final agreement on all concepts by then.
- April 9: The deadline to schedule a required Senate Work Session to review it.

TERMINATIONS:

There are three parts to this issue:

Part 1: We agree to make a distinction between separate and ongoing minor violations.

Part 2: We agree to add “Materially” to describe the types of violations for which a tenant can be terminated. (But, given that we are adding in language to describe “material” (major) violations, it only seems reasonable to add language around what constitutes a minor violation.

Part 3: We have not come to agreement on who to treat minor violations.

The Tenants largely agreed to eliminate the 3 strikes and you are out option because Tenants do not think it’s right (for a numbers of reasons – too many to explain here) to evict someone because their dog was off leash 3 times or any other minor violation. We OWN our homes.

Which leaves us with the option to allow Landlords the ability to charge us fees. But not all Tenants agreed on this. Approximately half of the tenants (including one voting member) wanted to adopt the fees for minor violations and move on. The other half of the Tenants (full disclosure – I am in this latter group) want to allow Landlords the ability to charge fees, BUT also want to further discuss adding a few reasonable additional protections from abuse.

My experience with my marina landlord when she billed us for a $7 fee we didn’t legally owe is that we contested it and she told us we had to pay it. Our only other recourse, under current law, is to not pay it and take our chances in eviction court where the judge would likely side for us since we truly legally didn’t owe it…but let’s say the Landlord was able to convince the judge that we did owe the $7, either by falsifying documents, or perjuring herself to say that we had verbally agreed to it (stranger things have happened). IF the Judge decides that we owe the $7, then we are EVICTED. We are not given the chance to pay the $7…nope. We are forced to leave the marina. We lose our home. Over $7. Current law. No joke.

Therefore, we simply paid the $7 because we have better things to do than fight a legal battle over $7.

Now imagine the fee your landlord is charging you for a minor violation is $50 and you live on a fixed income AND you don’t owe it.

The following outlines the latter argument for why we need additional protections. Although, at this time, this late in the process, we may not get them this year.

We are about to give Landlords more power and are not adequately protecting Tenants from potential abuses of that additional power.

If we change ORS to allow fees for minor violations, then we are now going to allow ALL Landlords to (1) unilaterally amend rental agreements, (2) charge tenants fees for minor violations (and add a few more violations to ORS such as inoperable vehicles, etc.), and (3) terminate if Tenants don’t pay the noncompliance fees. Most Landlords do not currently have this power.

Adopting ORS 90.220(9) is just one step towards protecting Tenants from potential abuses that could follow if we allow all Landlords to terminate for the nonpayment a $50 minor violation fee.

ORS 90.220(9) is the statute that lays out what hierarchical order a Landlord can apply the payments they receive from a tenants. It basically says that a Tenants rent check can only be applied to rent first. In other words, a landlord cannot charge you a fee, then take the fee out of your rent check, thereby making your rent late which can get you evicted.

ORS 90.220(9) does not apply to marina tenancies. Only to apartment tenancies. Our group advocated for adopting this apartment law to apply to marina and park tenancies.

Without ORS 90.220(9), if a Landlord were to charge a noncompliance fee for a minor violation and the tenant didn’t pay it (perhaps they didn’t commit the violation and don’t believe the noncompliance fee is valid), the Landlord could use the Tenant’s rent payment to pay the contested noncompliance fee first. In this situation, the Landlord’s action causes the Tenant’s full rent payment to be considered “short”, which means, by definition, the Tenant’s rent is not paid.

When rent is late, it is a Material Violation of the lease. The Landlord can then issue a 30-day termination for nonpayment of RENT. So, without 90.220(9), the Landlords have the power to change a situation from being a Termination due to nonpayment of a noncompliance fee for a minor violation into a Material Violation of the rental agreement. The two cases for Termination are viewed very differently by a judge in an FED case. The case is then heard before a judge on the grounds of Termination Due to Nonpayment of Rent, when really the causing factor for the termination is not paying the $50 fee for a minor violation.

And keep in mind that minor violation notices do not require proof or evidence of any kind that a violation actually occurred. The notices just have to state facts sufficient to communicate the reason for the notice. So, a minor violation notice could state that “a tenant saw you fail to clean up after your dog.” So, if you don’t agree that you committed the violation and disagree that the fee is owed, then you could get terminated on the basis of Nonpayment of Rent. I witnessed a newer tenant get a warning because a “long-time resident saw (his) daughter throw a soda can into the river.” The accused tenant checked his grocery receipt – he had just moved in that day and just gone to the grocery for the first time and bought the kids one 6-pack of soda, and he had all 6 cans accounted for either in the fridge or the recycling. He offered to bring the cans and the receipt to the landlord as proof to refute the claim by the “long-time resident” who remained anonymous. The landlord said that wouldn’t be necessary because she believed her long-term resident over him. There is no proof or evidence required for notices.

Adopting ORS 90.220(9) creates a much-needed separation between terminations for reasons of nonpayment of noncompliance fees (the cause being a minor behavioral violation) and terminations for nonpayment of rent which is a material violation of rental agreements.

Giving Landlords these additional powers along with keeping the causes for these two types of termination separate – these two changes to the law complement each other and provide for a system of checks and balances that I know will benefit both Landlords and Tenants.

(Landlords said they would be ok adopting ORS 90.220(9) IF they could move fees to the top of the hierarchy, thereby causing tenants who didn’t pay the fees to be evicted.)

I reject the Landlords proposal to change ORS 90.220(9). We would like ORS 90.220(9) to be made applicable to park and marina tenancies as it is written in the statute.

Here are 4 reasons I think Tenants and Landlords need ORS 90.220(9) – Order of application of payment.
1. It seems that park and marina tenants should have, at the very least, the same protections as apartment tenants, although the second half of Chapter 90 exists because there is a legislative need to provide MORE protections for park/,marina tenancies than apartment tenancies. Apartment tenants already enjoy the benefits from ORS 90.220(9). The exemption of park and marina tenancies from ORS 90.220(9) seems to be just an understandable “oversight” as JVL explained (the General Coalition who passed ORS 90.220(9) didn’t want to speak for us). So currently, park/marina tenancies have less protections than apartment tenancies regrading the order of the application of fees. We should correct that.
2. Given that Tenants are on the precipice of allowing Landlords additional ways to exercise control over tenant behavior (spelled out in ORS with clear penalties for minor violations – a power which most Landlords do not currently have), as well as another way to extract fees by the unilateral amendment of leases (another power which they do not currently have), and that Tenants are placing themselves at additional risk for Terminations (for non-payment of noncompliance fees – MOST Tenants are not currently at risk for this category of terminations because noncompliance fees aren’t allowed in their leases), it only seems humane, fair and right that the Tenants should have some sort of understanding and trust about the hierarchy of where their rent checks will go.
3. ORS 90.630(1)(e) already authorizes a Landlord to terminate for nonpayment of a noncompliance fee under 90.302(3). Landlords already have this right. What the Landlords are now asking for is the right to Terminate on the basis of rent (a Material violation) where the underlying cause is simply a contested minor behavior violation either by (1) not adopting ORS 90.220(9) or (2) by adopting ORS 90.220(9), but altering it such that its protections from Landlord abuses are eliminated.
4. What do we think an FED Judge will do when hearing a case where a tenancy is being terminated because the Tenant is short $50 on their rent payment and the Tenant makes the case that he is “short” because he paid rent in full but that the Landlord is applying it to a fee that should never have been charged? I don’t think the ability to pull noncompliance fees from rent helps the Landlord in front of Judge. And I don’t think it helps the Tenant either. Re-writing this application order strips this statue of its intended purpose and further muddies the waters of already-complicated FED cases.

Adopting ORS 90.220(9) does not affect a Landlord’s right and ability to Terminate a bad actor Tenant for bad behavior and nonpayment of noncompliance fees. That ability remains the same regardless of adopting ORS 90.220(9).

In summary, most landlords did not amend rental agreements to allow noncompliance fees (and subsequent terminations for minor violations) when they had the chance. We are about to give ALL Landlords the ability to Terminate when a Tenant doesn’t agree with (and doesn’t pay) a noncompliance fee for a minor violation – of which no proof or evidence that the violation actually occurred is required. I think it is reasonable to ask that we have at least one safeguard measure [ORS 90.220(9)] put into place to help protect Tenants against possible abuses of this newly-acquired power.

Unfortunately, the Landlords would not agree to this. Given that we are running out of time to continue to debate this issue, we had to table it for our next meeting. If we cannot come to agreement, we will have to scrap this issue. If we begin scrapping issues, then the Landlords could stop the entire bill.

There are some other things we prosed to improve the issue concept as well. But it is unclear if those will even be heard due to time restraints.

So, cross your fingers for a productive next and FINAL meeting. This portion of the meeting did NOT go well for how late it is in the process. Clearly, there are still issues that require more through debate.

DISPUTE RESOLUTION AND ENFORCEMENT:

It is looking like we have agreement on Dispute Resolution and Enforcement. We agree to mandatory mediation and funding a special counsel to assist tenants with cases that will do the most good to eradicate “bad actor” Landlords.