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  • Friday, July 26, 2019 12:27 PM | Anonymous

    By Tia Politi, ROA President

    SB 608 and Property Sales

    With the passage of SB 608, buyers, sellers and realtors are finding that the law’s mandates are dramatically changing the world of property sales when there are tenancies of more than one year in place. The new law restricts a landlord’s ability to terminate a tenancy of more than one year to a for-cause termination, or for one of four Qualifying Landlord Reasons: 1) the property is being demolished or converted to a different use within a reasonable time; 2) the landlord intends to undertake repairs or renovations to the property within a reasonable time and the property will be unsafe or unfit for occupancy during repairs or renovations; 3) the landlord intends for the landlord or a member of the landlord’s immediate family to occupy the dwelling unit as a primary residence and the landlord does not own a comparable unit in the same building available that is available for occupancy; or 4) the landlord is selling the property separately from any other unit to a buyer who intends in good faith to occupy the dwelling unit as their primary residence.

    It’s becoming clear that especially for sellers of single-family homes, planning will need to start well in advance of offering their property for sale.

    Buying or Selling a Single-Family Home

    For an owner selling a single-family home occupied by a tenant for longer than one year to a buyer who wants to occupy the home as their primary residence, the new law requires that the tenant be provided with a 90-day notice of termination, and that at the time the notice is delivered the landlord also provide written evidence of the offer to purchase the unit not more than 120 days after acceptance (names and private information can be blacked out), and state that the buyer intends in good faith to occupy the dwelling unit as a primary residence.

    How is a seller to know if a buyer will want to keep the property as an investment and be willing to take on the existing tenancy, or if they want to purchase the home to live in? They won’t until they get an offer. If a buyer does want to live in the property and makes an offer, most buyers will need to get a mortgage to purchase, have an interest rate lock that expires in 45 days, and be required to occupy the home within 30 days after closing, so what are buyers and sellers to do?

    For a full cash sale, once the offer is accepted, the seller can provide the tenant(s) with ORHA Form #5A - Notice of Termination-Qualifying Landlord Reason, check the correct box, provide the evidence of the accepted offer to purchase, and pay the tenant the relocation expense of one-months’ periodic rent unless exempt. (Owners of four or fewer dwelling units are exempt from the payment of relocation expenses.) The notice must be prepared and served in accordance with ORS 105, and will remain in effect for the next owner. Even with an all-cash sale, however, the buyer could end up purchasing a huge liability if the seller failed to prepare and serve the notice in accordance with the law. The tenant could choose to stay and challenge the notice. If the buyer proceeds to eviction court, and they have inherited a defective or imperfectly served notice of termination, they could lose the case in court, have a judgment against them, possibly have to pay the tenant’s attorney, and start over again.

    In a case where a seller believes that it is likely the property would be sold to a buyer who wants to live in the property, and will need to get a mortgage to purchase, the best option may be to remove the tenant for another Qualifying Landlord Reason, such as the owner intends to undertake repairs or renovations to the unit within a reasonable time and the unit will be unsafe or unfit for occupancy during repairs or renovations.

    The question then becomes, how significant do the repairs or renovations need to be in order to claim the right to terminate? It depends. The owner may be challenged and have to justify their decision to a judge, so need to be prepared to think about this ahead of time. Many repairs or renovations would make a property unsafe or unfit for occupancy, and most contractors will refuse to do substantial work in a unit with tenants in place, but sellers should make sure they can justify the level of work they are doing to prepare to sell.

    Realtors encourage sellers to spruce up the unit prior to marketing, so a full interior repaint would likely qualify as would replacement of flooring throughout, kitchen or bath remodels, etc., but things like new windows may not as new windows can be installed from the outside and would not make the property unfit for occupancy during the install. (As a side note, remember that your insurance company will likely not provide full coverage for your unit if it is vacant for more than 30 days, so sellers should have a plan for that, such as a house sitter.)

    The Duplex Rule

    SB 608, does provide a narrow exception to the new termination rules for owners with two units on the same tax lot where one unit is their primary residence. The new law continues to allow termination of tenancy for no-cause with a 60-day notice, or with a 30-day notice if the property is to be sold and the buyer intends in good faith to occupy the tenant’s unit as their primary residence. If the buyer does not intend to occupy the tenant’s unit as their primary residence, then the tenant comes with the property. There are pitfalls in this scenario as well, and while the exemption exists for this type of property, landlords are still obligated to payment of the relocation expense of one-months’ periodic rent at the time the notice is delivered, unless exempt. (Owners of four or fewer rental dwelling units are exempt from payment of the relocation expense.) Use ORHA Form #5C – Notice of Termination – Two-Unit/Owner-Occupied Property.

    If the duplex is being held as an investment property and the seller does not live in one unit, but the buyer wants to occupy one side as their primary residence after closing, the same rules would apply as if for a single-family home. If the tenancy has been in place for more than one year on the side the buyer wants to live in, the seller would either have to issue the 90-day notice of termination – Qualifying Landlord Reason, for one of the four reasons allowed by law, or sell the property as-is and the buyer can issue the notice for the qualifying reason of wanting to live in the unit as their primary residence. Once the notice expires and the tenant vacates, the buyer can then move in.

    Cash for Keys

    This is a tried and true method for regaining possession of a property and nothing in the new law prohibits both parties from making a mutual termination agreement. Just make sure that the terms are clearly spelled out in writing, and that the agreement states what will happen if the tenant complies and what will happen if they don’t comply (It’s a smart decision to have an attorney draft the agreement). Also, don’t hand over the cash until the resident is ready to hand over the keys.

    Marketing an Investment Property

    SB 608 does not impact property sales where the seller and buyer are both investors and the buyer won’t be living at the property, but there are still issues that can make the property easier or more challenging to market – mostly in regards to the price of rents, the quality of the tenancies, and the completeness of the seller’s documentation.

    Owners who have under-market rents will find that their properties cannot prove sufficient cash flow to meet the demands of sophisticated investors, and they won’t be able to command the same price. If you are planning to sell an investment property in the not-too-distant future, and your rents are below market, plan ahead to increase rents within the limits imposed by SB 608 until your rents are market rate so that your property can command the best sales price.

    The quality of the tenants can help or hurt investment property sales as well. Residents who are keeping to their lease and caring for the property are a fantastic marketing asset for sellers; problem residents are not.

    The completeness of the seller’s tenancy documents can also help or hurt the sale. If there are gaps or flaws in your paperwork, fix them now before you market your property for sale, or be prepared to accept a lower price as a buyer will have to agree to accept the increased liability and correct the deficiencies.

    Paperwork Pitfalls

    What does good paperwork look like? The rental agreement and all addenda are complete, initialed, signed and dated by all adult occupants; the seller has good documentation on the condition of the units on move in; there are accurate tenant ledgers; and good notes and copies of notices regarding lease violations during the tenancy.

    Without good paperwork, a buyer may be purchasing liability. For example, the seller is marketing their property built prior to 1978, but has no signed lead-based paint disclosure. The penalty for this violation if reported to the EPA, is $6000. The buyer could require as part of the sale, that the seller fixes the deficiency in the paperwork so that they are not taking on that kind of liability. Or the buyer could agree to accept responsibility for fixing that problem after the sale, but use that deficiency to negotiate a lower price. To ensure they are fulfilling their fiduciary duty to their clients, Buyer’s Agents should request copies of all leases, addenda, and tenant ledgers and review them for completeness, or have an attorney review them. Also, any existing notices of termination should be reviewed by an attorney or professional consultant to ensure that they will hold up in court if the buyer purchases a property before a notice of termination expires.

    Planning ahead

    Depending on the timeframe required for renovations, if owners are planning to renovate ahead of marketing their property, they should think about providing notice to vacate in November, December or January to hit the sweet spot on the sales season. I can’t stress enough how essential it is that owners ensure their notices of termination are prepared and served perfectly. A defective notice of termination can result in a loss in court. For sellers that can mean a lost sale; for buyers it can mean a long delay in being able to occupy the property; and for both it can mean a court judgment against them, payment of attorney fees to the prevailing tenant, and starting the process all over again.

    Also, sellers need to consider that even with a good notice of termination in place, the tenants may not move out, requiring an owner to initiate an eviction action in court. If uncontested, the court process takes two or three weeks, with more time added if there’s substantial abandoned property to address; if contested, the process can be delayed further, so owners should factor that into the timing of the notice to vacate. And just to complicate matters even more, remember that tenants may still provide just 30 days’ notice to vacate which could throw off the timing as well.

    The takeaway

    A property sale with tenants in place for more than one year now requires better advance planning by sellers, more thorough investigation by buyers, and for realtors, it requires a higher level of due diligence than ever before. Fulfilling their fiduciary duty to their clients means educating themselves on the mandates of SB 608 and all of its intricacies to provide their clients with the best information possible as to the benefits, drawbacks and possible outcomes of selling rental property.

    About the Author: Tia is a licensed property manager with more than seventeen years of management experience. She currently manages four low-income senior & disabled and family housing complexes, as well as her own rental properties. Tia serves as President of the Board of Directors for the Lane County Rental Owners Association, Chair of Programming and Bulletin Committees and Co-Chair of the Education Committee. She is a state delegate and Secretary for the Oregon Rental Housing Association, and the Forms Committee Chair. Tia is a volunteer instructor for St. Vincent de Paul's 'Renters Rehab' program. She also teaches classes to landlords on topics including evictions, the move-in process, tenant issues, and fair housing & advertising. Last year, Tia developed and taught a curriculum for high school seniors on the risks, rights and responsibilities of being a tenant with a goal of providing instruction to all young people throughout the state as part of essential life skills education.

    This column offers general suggestions only and is no substitute for professional legal counsel. Please consult an attorney for advice related to your specific situation.


  • Friday, July 26, 2019 11:59 AM | Anonymous

    By Tia Politi, ORHA Forms Committee Chair


    Dear Local Associations of the ORHA,

    Usually, when ORHA produces a new Forms Manual or Law Book, we work to create an insert or guide that can be added to the previous manual that allows it to be used longer, saving our members money. With the addition of so many new forms, and so many updates to established forms, the board feels that this is not a good option. We are encouraging you to urge your members to purchase the new ORHA Forms Manual 2019 and dispose of the old one. We are moving toward the idea of creating a system or how-to guide for property management in Oregon, and so have revamped the order of the Forms Manual by putting the educational sections, “Delivery of Notices” and “Delivering Possession,” before the forms themselves.

    We exist to protect and serve the interests of our members, and one of the most valuable things we can teach them is the importance of perfecting service of notice. Failure to select the right form, fill it out properly, calculate time correctly, and serve it perfectly are the most common cause of landlord loss in the courtroom and imposition of money judgments owing to the tenant.

    Cloud Miller of TVRA is encouraging members who are reluctant to get a new manual by requiring them to have one if they want his help on the Helpline related to forms. He then teaches them how to find the answers by taking them through the answer in the manual. It has the added benefit of reducing calls.

    Lane ROA is selling the manuals at a lower price now and plans to increase the price in November, and is letting members know. Use whatever strategy you feel would work to get this important reference book into the hands of your members.

    Violet Wilson of SRHA, created a class for her members on the new Forms Manual, that ORHA has purchased to distribute to all of you for the low, low price of $20. Violet’s presentation is designed for a three-hour class and runs attendees through service of notice, the different types of notices, and how to use the manual. Please contact Virginia at the office if you would like a copy of the PowerPoint presentation. She will email it to you, and all it takes is a class facilitator to run through the material. You can print handouts for classes as needed in whatever layout works. Educate your members, create interest in your association, and make money to further your mission – what’s better than that?

    And finally, just in case you haven’t read the rundown on the new forms, here’s the skinny:

    The 2018 Forms Manual was complete and ready to go to print, when word came that there would be a major change coming to the Landlord-Tenant Act – ORS Chapter 90. The board of directors decided it would be best to delay the release of the manual until new forms could be created and incorporated. The final version of SB 608 instituting rent control and limits on no-cause termination of tenancy, was signed into law on February 28, 2019, with an emergency clause. The Act became effective on the Governor’s signature for rent increases, fixed-term leases entered into or renewed on or after the effective date, and terminations of month-to-month tenancies occurring on or after the 30th day after the Governor’s signature. 

                The Forms Committee introduced several new forms earlier in 2019, including Septic Agreement (Form #61), Well Agreement (Form #62), Fireplace, Wood Stove, Pellet Stove Agreement (Form #63), and Pest Agreement (Form #64). This year we are also rolling out a new Exterior Property Care Addendum (Form #65) that address issues of yard care and other exterior care issues, as well as a new Weatherization Addendum (Form #66) to clarify the responsibilities of Landlords and Tenants in protecting the property in case of severe weather events. We have added a Co-Signer Application (Form #52A), to make screening co-signers easier, and have changed our satellite agreement to include cable hookups and security systems. This form is now called the Cable/Satellite Dish/Security System Agreement (Form #24). We also updated several forms in response to user feedback and attorney review, including both the Application (Form #1), Month-to-Month Rental Agreement (Form #2A), Fixed-Term Rental Agreement (Form #2B), Rules and Regulations (Form #33), Add or Delete Tenant Agreement (Form #59), Deposit Refund Checklist (Form #21), the Pet Agreement (Form #3), the Assistance Animal Agreement (Form #46), 24-Hour Notice to Enter (Form #18), and both the Medical Marijuana Agreement (Form #10) and the Marijuana Agreement (Form #10A).

                With the passage of SB 608, the Forms Committee updated the Notice of Termination – No-Cause (Form #5) to clarify that it only applied to first-year tenancies. The committee kept the options for 30, 60 or 90 days because in certain jurisdictions or in subsidized housing, termination timeframes are different. The committee also created new termination forms:  Notice of Termination – Qualifying Landlord Reason (Form #5A), Notice of Non-Renewal of Lease (Form #5B), and Notice of Termination – Two-Unit/Owner-Occupied Property (Form #5C), to help landlords comply with the new requirements. The Notice of Rent Increase (Form #13) was updated to include language consistent with the requirements of law, and created a form Notice of Lease Renewal (Form #67) that provides a way for landlords to incentivize lease renewals rather than allowing the tenancy to convert to a month-to-month agreement.

    To make it easier for landlords to provide warning notices to tenants under a fixed-term lease and potentially terminate a lease under the Three Strikes rule, the following forms have had new language included that states:  “If you are on a fixed-term lease, be advised your landlord has the option to terminate your tenancy at the end of your lease if you have received three or more notices for noncompliance (including non-payment of rent) within a 12-month period preceding the end of the fixed term. Owner/Agent may terminate the tenancy by issuing a 90-day notice prior to the lease end date, or 90 days prior to the date designated in the notice, whichever is later. Correcting the third or subsequent violation is not a defense to the termination. This is your                   violation in the last 12 months.”

    This language has been added to all non-compliance forms, including:

    ORHA Forms #4 & #44 – 72/144 Hour Notice of Non-Payment of Rent

    ORHA Form #6 – Unauthorized Pet Violation

    ORHA Form #14 – Past-Due Rent Reminder

    ORHA Form #34 – Parking Violation

    ORHA Form #35 – Notice of Non-Compliance

    ORHA Form #38 – Notice of Termination with Cause

    The forms committee also included language on all of our termination notices to comply with a new law requiring landlords to make veterans aware of the community resources that may be available to help them. Even though this law does not take effect until January 1, 2020, we thought it would be prudent to include the language now.

    Two other bills that passed this term, but won’t take effect until January 1, 2020, are necessitating changes as well. After the law takes effect, a landlord may only require an applicant to pay a single applicant screening charge within any 60-day period, regardless of the number of rental units owned or managed by the landlord for which the applicant has applied to rent. This prompted a change to Application Screening Charge Receipt (ORHA Form #42) reminding landlords of the new rule.

    Another change to screening guidelines:

    • 1)      When evaluating an applicant, the landlord may not consider drug-related convictions based solely on the use or possession of marijuana.
    • 2)      When evaluating an applicant, the landlord may not consider the possession of a medical marijuana card or status as a medical marijuana patient when making a determination about the suitability of an applicant. Affordable housing providers subject to federal laws prohibiting the use or possession of marijuana (including medical marijuana) by resident on the premises may continue to enforce those rules with their residents.

    This prompted a change to Application Screening Guidelines (ORHA Form #45) reminding landlords of the new rule.

    As we work at the state level to provide the best updates to forms and our manual to serve your association, we know you share the desire to keep our members’ interest paramount. Please encourage them to only use the most updated forms.


  • Wednesday, September 05, 2018 10:53 AM | Anonymous

     Assistance Animals: Best Practices for Landlords

    Federal Fair Housing laws prohibit discrimination against people who are members of protected classes, in the advertising, sale or leasing of real estate. For rental owners, that means making exceptions to your standard policies or allowing a modification of the premises in order to allow a member of a protected class (in this case a disabled person) the opportunity to enjoy the dwelling unit the way a nondisabled person could by allowing the keeping of an animal that is not a pet. Under the law, an animal that assists a disabled person is seen as an assistive device.

    When it comes to things like wheelchair ramps, visual smoke alarms or shower grab bars, rental owners by and large have no objection to making an exception. Some accommodations such as longer grace periods for rent payments or a dedicated space in a first-come, first-served parking lot, can generate some grumbling. But absolutely nothing causes more upset and opposition than the idea of assistance animals – especially for “no pet” rental owners.

    Much of this attitude is based on hard experience in regard to the damage that animals can inflict on a rental property. In my experience, more than half of all residencies involving animals generate at least some animal-inflicted damage to the house or grounds. With pets, rental owners can charge higher deposits and higher rent to offset the financial risks. They can also restrict the size, breed, or types of pets, as well as the number of pets on the property. With assistance animals, rental owners lose a lot of control over those decisions. This seems unfair as they are the ones faced with the expense of repairs that may go beyond the amount of a traditional security deposit. Even though assistance animal owners are responsible for any damage caused by their animal, it can be frustrating to pursue them to repay damages, and difficult to collect.

    Also tenants seem to have become more aware of their rights in this regard, leading to a noticeable increase in those who report disabilities and are able to obtain a prescription or other care provider authorization. While we can all see the need for a blind resident to be allowed their seeing-eye dog, a diabetic their blood sugar-detection dog, or an epileptic their seizure-detection dog, the surge in “comfort” animals is creating bad feelings among landlords whose perception is that residents are blatantly abusing the system.

    As a rental owner, I completely understand the angst this generates, but guess what? I personally have two dogs and find great comfort in their presence. Numerous studies have shown that the presence of an animal in a residence leads to better mental health for their owners. Dog owners enjoy a markedly reduced risk that their home will be burglarized or that they will become the victim of a violent crime. Now if I were a person seeking a rental, could I make the case that without Stella and Bandit I would suffer? Probably. I certainly would feel more vulnerable to crime and miss their comforting presence. Does that mean I’m disabled and could not get by without them? Maybe. I don’t feel disabled, but I’m thankfully not in a position of having to choose either. I guess the point of telling you that is we often can’t see the invisible anxieties, disorders, fears, conditions, and past traumas of another person that necessitates an assistance animal, and under federal law meets the definition of a disability.

    What is a disability?

    “The term "disability" means, with respect to an individual a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.

     Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

    A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

    An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

    The ADA does not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

    The definition of disability shall be construed in favor of broad coverage of individuals to the maximum extent permitted.

    An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

    An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

    The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing assistances and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary assistances or services; or learned behavioral or adaptive neurological modifications.”

                                                                                                                      -ADA website

    Additionally, the term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impediments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction, and alcoholism.  This definition doesn’t include any individual who is currently using illegal drugs or is a current user of alcohol who poses a direct threat to property or safety (24 CFR 100.201).

    Fair Housing law provides that rental owners shall, without regard to normal rules imposed on tenants, allow for an accommodation to relax those restrictions in order for a disabled individual to enjoy the rental unit the way a non-disabled person could. To the extent that a specific request is “reasonable” a rental owner must allow an exception to accommodate an individual’s disability. That includes allowing animals when they would otherwise be prohibited. Both rental owners and residents have misconceptions about what requirements are lawful to impose upon the owner of an assistance animal. I hope you find the following FAQ helpful in achieving a better understanding of your rights and responsibilities as a landlord:

    Is a resident required to ask for the accommodation for an assistance animal in advance? A reasonable accommodation request may be made at any time, including during the eviction process, and the failure to do so does not mean you have a right to automatically decline the request whenever it’s made.

    Am I obligated to inform residents of their right to an assistance animal if they have a disability? No, the request must be initiated by the resident or by another on the resident’s behalf, but rental owners are obligated to consider all reasonable accommodation requests from their residents.

    Does the request have to be in writing? No, a verbal request is also required to be honored.

    Is there any difference between a service animal, an aid animal, a companion animal, a comfort animal or an assistance animal? Not under the law. Any of the above terms may be used to describe an animal that meets the disability-related need of a resident.

    Can I restrict the size or breed of an assistance animal? No.

    Can residents have both pets and assistance animals? Yes, if your policies allow for pets.

    Does an assistance animal have to be specially trained? While many assistance animals are specially trained to assist their owners with physical disabilities, many assistance animals simply provide comfort and peace-of-mind to their owners, ameliorating the effects of mental, psychological, social, or anxiety disorders in the affected party. Post-Traumatic Stress Disorder (PTSD) is a common diagnosis for combat veterans, rape or assault survivors, or protected classes who have, historically, experienced discrimination. Often children with disabilities find great comfort and stability by relating to and caring for animals. The bottom line is, you are not qualified to determine whether or not someone needs this type of accommodation and should never try to be the final arbiter of whether an individual’s condition requires an assistance animal for purposes of considering a reasonable accommodation request. It is the care provider alone who determines whether or not someone meets the definition of a disabled person.

    Can I ask what the disability is? No. That is private information and you are not entitled to have it. At my company, however, we are seeing many doctors, nurses and social workers telling us what the condition is in direct violation of HIPAA privacy statutes, yikes! But that’s their liability, not ours.

    When I asked an applicant for a care provider authorization, they presented me with a card saying the animal was a service animal and told me it was illegal to require more. Is that true? No, there is often a misunderstanding among disabled people with service or assistance animals that they are allowed to bring an animal onto a rental property with only a service animal ID card they obtained legitimately or one they printed off the internet. While that is often all that is required for access to public stores and buildings under the ADA, it is not true for assistance animals in housing. You can require a care provider authorization in most cases, but remember, if a person’s disability is obvious, it is considered a violation to require that they verify their obvious disability.

    What kind of paperwork or verification can I require of a tenant with an assistance animal? You may require a verification from a qualified care provider who has direct knowledge of the disability (unless the disability is obvious, then you may not require the verification). You may require that the animal be vaccinated and licensed as required by law or ordinance. In most cases you may also request that the animal be spayed or neutered (more on that later), and proof of such provided to you. You may request a photograph of the animal. You may request that the tenant name a responsible party who agrees to take the animal and care for it should the tenant be unable to do so.

    What is the definition of a “care provider”? A care provider can include a medical doctor, a psychiatrist, a counselor or clergy person, a social worker, or a parent or other family member. Basically, any other individual who provides or has provided care to the disabled person, has direct knowledge of the applicant’s or tenant’s disability, and verifies that the animal is needed to allow the disabled resident to enjoy the unit the way a non-disabled resident could. If an applicant or resident provides a recent care provider verification, it is okay to contact the care provider for verification that they issued the verification, as long as you don’t use that as an excuse not to allow the animal to move in in a timely fashion. Also, it can be construed as improper to require them to re-verify their prescription in writing.

    What if the verification says the person would “benefit” from an animal? Well, I would benefit from a million dollars, but that doesn’t mean I’m disabled. It is required that the care provider verify that the person meets the definition of a disability and that they need the animal to meet their disability-related need. You could decline a request when the care provider has determined that the individual does not meet the definition, but be prepared for them to correct the deficiency in their verification, which then obligates you to reconsider the request.

    Can I require that the paperwork be completed prior to the animal taking up residency? That depends. You may not place unreasonable barriers in the way of someone seeking an accommodation, but if an applicant makes a request as opposed to an existing tenant, I usually request that they get their care provider authorization in prior to the animal taking residency. But I also work with people whose records are packed away or need time to get their dog licensed because they just moved to town.

    One of the more irritating things rental owners have been experiencing are last-minute notifications that an approved applicant makes (often at the time of move-in) that they have an assistance animal. But many tenants are rightfully wary to disclose this due to concern that a rental owner will find another way to deny their application, so they wait until the time of move in to disclose, or wait until they move in and you discover the animal. To try to prevent some of this, we have changed the ORHA application (ORHA form #1) to say: “If your service or companion animal requires a reasonable accommodation please inquire with Owner/Agent.” This can help avoid surprise requests, giving both parties enough time to take care of the paperwork prior to the animal taking up residency. If you have older applications you should get new ones.

    Can a rental owner have an assistance animal removed pending a care provider verification of the need for the animal? That is extremely risky and could be seen as placing a barrier in the way of a disabled person. Remember, the disabled individual is asserting that they need that animal to assist them with their disability. You don’t want to be guilty of creating a breakdown for the resident or otherwise causing them to fear discriminatory treatment, which could result in a claim against you even if you eventually approve the accommodation. It’s best to assume, until proven otherwise, that the request is legitimate.

    What if a guest brings an assistance animal onto the property, do I have to allow that? Likely, yes, but the visitor is also required to prove that the assistance animal is legit by completing the same paperwork as a resident.

    Can I charge a deposit or higher rent for an assistance animal?   No.

    Can I require that the assistance animal be spayed or neutered? That is disputed. Even among well-educated people within the Fair Housing agency itself, there is some disagreement on this matter. It is certainly okay to REQUEST that the animal be spayed or neutered, but be open to an explanation of why that may not be possible or advisable. For example, I have a tenant with a balance disorder who has a large specially trained purebred dog that walks beside her to provide stability and keep her from falling. She has a contract with the breeder that prevents her from spaying the dog until it is at least five years old, so I made an exception for that. Also, once an animal is beyond a certain age, it can be physically risky to subject them to that surgery, which could be another good reason to make an exception. Remember, you can’t place unreasonable barriers in the way of the person seeking accommodation.

    Can I require that the assistance animal be licensed and current on vaccinations? Yes, if applicable. Owners of assistance animals must still comply with all codes and laws regarding vaccination, registration and licensing of their assistance animal.

    How many animals can be allowed per person? That is not defined under the law. Each animal must qualify on its own in regard to the service it provides to the disabled person. And, no, assistance animals are not entitled to their own assistance animal!

    What types of animals are allowed to serve as assistance animals? Domestic animals are clearly allowed, but vermin can be excluded. Review each request on its own merits and make exceptions when reasonable to do so. For example, under current law you are not required to allow farm animals as assistance animals, but one of the more popular animals for visual assistance for the blind is a miniature horse. They are no larger than many dogs, can be house-trained, and live up to three times as long as a seeing-eye dog, making them a better long-term investment. Current rules don’t require that you consider allowing vermin species such as most rodents, snakes or even fish, but this area of law is always evolving and if you don’t want to end up as a test case, best to consider ALL requests and grant them when it is reasonable to do so. There was a recent case where a guinea pig was determined to be a valid assistance animal. Could I see a scenario wherein watching fish swim in their tank or have a boa constrictor squeeze your arm have a calming effect related to a resident’s disability? What do you think?

    What if I have a severe allergy to a specific type of animal? All requests must be reasonable. The definition of reasonable is open for debate, hence the opportunity for litigation, resulting in case law that provides clarity as to what is or is not allowed. I had a potential client once who had purchased her dream home and intended to live in it during retirement which was a few years away, but wanted to rent it out in the meantime. She had a life-threatening allergy to cats and asked me if she could exclude cats from residing at the property even if they were assistance animals. I discussed it with staff at the Fair Housing Council of Oregon, who agreed that it could be justification for declining assistance cats, but that the woman should be very sure she could prove it if a complaint were filed against her. I would go further and recommend that you obtain your own verification of disability from your care provider in advance, so that if this issue ever arises you will be prepared.

    What if the assistance animal damages the property or the resident won’t clean up after it? Assistance animals, just like pets, are not allowed to be destructive, dangerous, or disturb the covenant of quiet enjoyment. Residents are required to take proper care of the animal and clean up after it. Non-compliance fees may be charged and tenancies terminated for failure to clean up animal waste outside the dwelling unit. Residents must pay for any damage caused by their assistance animal and their tenancy may be terminated for failure to pay.

    What if an assistance animal disturbs the peaceful enjoyment of neighbors? After a good faith effort to allow the tenant to fix the problem, you would be justified in having the animal removed or ending the tenancy. I got a complaint from a resident in a four-plex that his neighbor had a dog and when she left it would bark continuously, interfering with his right to quiet enjoyment. She was also failing to clean up its waste. I served her a Pet Violation notice and she contacted me to let me know her daughter had brought her the dog and it was an assistance animal. I sent her our assistance animal paperwork, but told her that since this animal had already proven itself to be disturbing the peaceful enjoyment, she would either need to find a way to stop the incessant barking or find a different assistance animal. I also reminded her of the obligation to clean up after the dog and that any further instances would result in the possible assessment of non-compliance fees, leading to either the removal of the dog or a termination of her tenancy. She removed the dog, but of course we remained open to her obtaining another assistance animal. If she had kept the dog, but continued to allow it to disturb the neighbor’s right to quiet enjoyment or failed to clean up after it, I would have served a Notice of Termination with Cause (ORHA form #38) for the violation(s), resulting in either a cure of the notice or termination of the tenancy.

    What steps should I take if I see an unauthorized animal in my unit? I start by serving a 10-day Pet Violation Notice (ORHA form #6), requiring the tenant to remove the animal or their tenancy will terminate after 10 days. I also send along a Warning Notice (ORHA form #35) letting them know that if the animal is not removed within 48 hours, they will be assessed a $250 noncompliance fee, with additional fees being charged for every 48 hours the unauthorized pet remains on the property. That usually gets a response. About half the time the resident asserts that the animal is an assistance for a disability.

    When that happens, take at face value that it really is an assistance animal until proven otherwise, then provide the necessary paperwork (Reasonable Accommodation Request and Verification – ORHA form #53). Follow up with the resident to make sure that their verification is valid and the animal is spayed or neutered (unless you have made an exception), current on vaccinations, and licensed if required by law. Once the verification is complete, the tenant fills out and signs the Assistance Animal Agreement (ORHA form #46), recording the pertinent information about the animal as well as a Responsible Party Certification. The form also reminds the resident about the rules for their assistance animal and the consequences of violating those rules. Get a photograph of the animal for your records and keep it with the tenant’s file.

     

    Sometimes providing verification of things like spay/neuter records, vaccinations or licensing can take time to accomplish, especially if all the requirements haven’t been met and the resident doesn’t have the funds. There’s no set timeframe within which the resident must fully comply, and there are conflicting thoughts on what is reasonable in regards to compliance, so err on the side of caution. If you terminate a tenancy based on a resident’s failure to provide assistance animal documentation, make sure you are not placing barriers in their way. For example, requiring that everything be completed in two weeks may not be a problem for one resident, but could be a burden to another on a fixed income with no transportation. Sometimes it can take time to get a vet appointment, or come up with the money for licensing.

    What is the risk to me for denying an assistance animal? The potential consequences are expensive. The Bureau of Labor and Industries (BOLI) is the enforcement arm of Fair Housing in our state. The system is complaint-driven. What happens after a complaint is filed depends on the nature of the complaint, but testing is often the first step in determining whether or not discrimination has occurred. In one prominent local case a few years back, a rental owner who was advertising their “no-pet” rental was contacted by a prospective applicant who told the owner he had an assistance animal. The owner responded by saying, “We don’t take pets.” The individual filed a complaint with the Fair Housing Council of Oregon, who tested the rental owner several more times. He failed and was fined $16,000 by BOLI for discriminating against the disabled. Discrimination penalties are often much, much higher, going into the tens of thousands or hundreds of thousands of dollars for large cases where a pattern of continuing discrimination is identified.

    So, what have we learned?

    This is how things are. You may not like it, but you have to follow the law or risk very painful consequences. Can’t bear it? Then go into a different business. Never try to dissuade someone from making a request for an assistance animal. If you get a call on your no-pet rental and are asked whether it’s okay to have an assistance animal, just repeat the following: “I do not discriminate based on any protected class, and I will consider a reasonable accommodation request for an assistance animal at any of my properties. Would you like an application?” Evaluate each request in relation to the reasonableness of the request and the verification provided, and do not make any decision before you have all of the information.

    Despite the risks, rental owners are obligated to follow fair housing law, so my best (non-legal) advice to you: Deal fairly. Inspect regularly. Enforce consistently.

    This column offers general suggestions only and is no substitute for professional legal assistance. Please consult an attorney for advice related to your specific situation.

    About the writers of this article:

    Tia Politi, Lane ROA President, with assistance from

    Victoria Smithweiland, Operations Director for Womenspace

  • Tuesday, September 04, 2018 10:46 AM | Anonymous

    September 1st, 2018

    Dear Colleagues,

    This Primary Election, our industry experienced a tremendous defeat with the loss of Senator Rod Monroe (D-Portland).  During the 2017 legislative session, he stood up to Speaker Kotek and the House of Representatives bill to end no-cause termination notices and impose rent control.  Unfortunately, that resulted in the advocates taking him out in the Primary election.

    We can’t let this happen again.  This coming November election is critical.  Either, we elect legislators who will help us manage our properties or we may face future set backs with rent control and/or the loss of no-cause evictions.

    The Speaker sees the defeat of Senator Rod Monroe as one step closer.  You remember the Oregonian headline...


    Kotek pushes for statewide cap on rent hikes, end to 'no-cause' evictions

    Never before has our industry been this aggressively attacked with our ability to control our properties in jeopardy.

    This is a special appeal because we need to raise $50,000 for our PAC in the next few weeks to defend ourselves or face the consequencesSo it’s time once again to please contribute to the Oregon Rental Housing KEY-PAC.

    Your contribution of $5,000, $1,000, $500, $250 or $100 will go a long way this election cycle to help stop these attacks!  A lot is at stake next legislative session.

    ORHA’s legislative successes are built upon getting the right legislators elected!  Regardless of a candidate’s political affiliation, ORH KEY-PAC helps elect candidates who will help protect your ability to own, operate and manage rental property.

    Over the years, ORH KEY-PAC has made a huge impact in elections that have ultimately helped the rental industry. 

    This election, we need two to three times the amount you usually contribute to defend ourselves next legislative session.

    So please, support the ORH KEY-PAC and support legislators who will understand and protect our industry. We simply can’t afford not to.

    Sincerely,

    Jim Straub
    Oregon Rental Housing Association
    Legislative Director
  • Monday, July 30, 2018 9:36 AM | Anonymous

    It’s a beautiful summer day in July and I’m sitting at my desk pondering the hotline calls I have been fielding, currently 4 for the day.  As I begin to dial  the 4th caller, I’m betting to myself that it will be a question centered around the “90-day rule”.  That’s the term I hear often from callers who are mostly private landlords trying to navigate increasingly turbulent waters in the rental industry.

    It is quickly becoming evident that there is a lot of confusion around recent city ordinance’s and changes to the ORS statutes that govern Landlord Tenant law, and it’s no wonder as some Oregon cities take up action outside the legislative process.

    What is the 90-day rule/notice?  Is it rent, no-cause termination notices, or both?  The answer is yes. Where does a 90-day requirement apply? Does it apply statewide or within city boundaries?  That depends on which 90-day notice we are talking about.  And, does it differ from area to area?  Does it include rent control? Well it’s no wonder there is confusion as the answers vary from yes, maybe and it depends.

    Caller number 3 had asked “How long of a notice do I need to give for a rent increase?”  I answer “90 days if you have a month to month rental agreement, after the first year of occupancy”.  His next question “and I am limited on the amount of rent increase due to rent control”?  I ask him where his rental property is located.  The answer will dictate my response. The next call centers around the no-cause notice timeline, is it 30-60-90 days?  Again, the response is centered around how long the tenant has resided in the home and where the home is located. 

    While the 90-day notice timeline for a rent increase is statewide, cities such as Portland have adopted rules pertaining to rent increase amount and the timing, and other areas within the state that do not fall under city ordinances, such as properties residing in outlying county areas are not bound by such rules.

    This holds true with notices of termination as well.  While the State has not yet adopted rent control as most would know it, Portland has included a relocation assistance program which adds to the confusion that has spread across the state. 

    The city of Portland has adopted relocation assistance related to rent increases that exceed 10%.  Portland, Milwaukie and Bend have all implemented an ordinance within their city limits.  It is important to understand each as they vary slightly, one from the other.  Additionally, cities that create their own ordinance’s may make changes or have sunset clauses.  Now more than ever it would seem, a landlord, professional or private, needs to be up to date on the laws. 

    The Oregon Legislative Information System has a link which provides a detailed breakdown of no-cause terminations and rent increases in Oregon https://olis.leg.state.or.us/liz/2017R1/Downloads/CommitteeMeetingDocument/131384

    While members of chapters that make up the Oregon Rental Housing Association have great resources, such as the hot line mentioned here in, it is not legal advice.  If you find yourself in unknown territory and need advice, always seek competent legal counsel.

    As I write this, what occurs to me most about answering hotline calls are the desires of landlords to meet their obligations, to understand impact and to be fully educated. I am proud of our rental association and I am proud of the individuals that own or manage rental properties statewide with integrity and knowledge.

    With more potential law changes in our future, you can bet it will only get more interesting and potentially more confusing but without question, there has never been a more exciting time to be a landlord.  Keep those calls coming and together we will all better navigate future changes.


  • Friday, March 03, 2017 7:47 PM | Anonymous

    Legislative Update

    -Jim Straub, ORHA Legislative Director

    A big thank you to all the overwhelming number of ORHA members who showed up in Salem to testify against House Bill 2004 on March 2nd. For those of you who were not there, we literally had hundreds of landlords who showed up to testify. It was an incredible and impressive sight. Unfortunately, not all of us were able to testify at the 8:00 am hearing due to time constraints, but to those of you who were able to return to the 5:00 pm hearing, an extra thank you.

    Terry Turner, our ORHA President, wonderfully represented our association with powerful, real and impactful testimony based upon her personal experiences Terry Turner, ORHA Presidentafter many years as a property manager. We should be proud as members of our organization to be so well represented by such an articulate advocate for our industry. Thank you, Terry.

    We asked for your support and ORHA members overwhelmingly gave it. We had the strongest show of landlord support that I have ever witnessed. I’m very thankful for all of our members who gave testimony that spoke from the heart and did so in a manner that was fair and respectful. Communicating in this manner was important to show not only the legislators but, also the tenant advocates that we communicate in a respectful way.


    The next step in this bill’s process is the committee will decide whether or not they will propose amendments to the bill or vote to move the bill as currently drafted out of committee, to another committee, or onto the House floor.

    If it gets passed onto the House, it will be scheduled for a vote by the entire House of Representatives. If passed, it will then go to the Senate Chamber, where it will be assigned to a committee, and we will have another round of public testimony.

    We won’t know exactly what will happen yet or the schedule until the coming weeks. Typically, we are told a week or so in advance when public testimony is to take place. We’ll let you know as soon as we know the schedule.

    Click the link for our latest bill tracking report from ORHA’s lobbyist Shawn Miller. The document contains information on the bills that were introduced since the bill introduction deadline. If you click on the bill number or the bill info, it will take you directly to the full text of the bill’s language on the Oregon State Legislature Website.

    There is still time to contact your state legislators about the bills we oppose. Do it in writing and by telephone. Make your voice heard. Go to oregonlegislature.gov for an interactive map to find your state legislator.

    Morning Session

    Evening Session
    (click a button to watch the testimony)

  • Tuesday, February 28, 2017 12:38 PM | Anonymous

    In its unending search for new victim classes, the Portland City Council voted unanimously to pass an “Emergency” ordinance requiring rapacious landlords to pay tenants relocation expenses upon termination of tenancy without cause or substantive rent increases.

    My only question is why stop with relocation expenses?  Everyone knows how avaricious property owners are.  Why not require them to foot the bill for the first six months’ rent as well?   Pay no mind to the years of sweat equity property owners have put into their respective properties or the increasingly onerous burden of taxes and fees leveled by an arrogant, insatiable municipal bureaucracy they must bear.  If real “social justice” in Portland is ever to be achieved, the playing field between the haves and have nots must be leveled.

    Unfortunately, the ones who will suffer the most will not be the greedy, grasping landlords but the tenants themselves.  The chilling effect this ordinance will have on all tenant evictions cannot be overstated.  If landlords were disinclined to deal with trouble makers before, they will surely turn a blind eye now.

    This will further degrade the quality of life enjoyed by the majority of tenants who live and play by the rules.  They will be disinclined to complain about a neighbor knowing in advance that satisfaction is unlikely.  At best they will be ignored.  At worst, they will be branded as haters and discriminatory. Reminds me of that old saying, “The road to hell is paved with good intentions.”  More often than not, the good intentions of government, when acted upon, have unforeseen bad consequences.  This is no exception.

    Robert S. Smith
    Peregrine Private Capital

    Robert Smith has worked with, guided and represented Oregon investment property owners for more than 25 years.

  • Wednesday, November 16, 2016 12:06 PM | Anonymous

    The city of Bend’s urban growth boundary expansion plan was approved Tuesday by Oregon’s Department of Land Conservation and Development. The expansion adds 2,380 acres of land the city can develop by moving the line that separates the rural county from urban development.

    Allowing for more than 17,000 homes, about half of the land will go to housing. More than 800 acres are slated for employment, adding room for more than 21,000 jobs.

    If no valid appeals are received by the state by December 5th, landowners can begin submitting plans to the city to redevelop properties. Plans for small developments such as new houses or duplexes could be approved within weeks, while planning entire neighborhoods could take more time.

    The current plan is a culmination of nearly a decade of work. The state turned down a 2010 proposal that had asked for an 8,000 acre expansion.


  • Tuesday, November 01, 2016 3:57 PM | Anonymous

    The election season is over, finally!  Now what?  How can you effect change in your city and in our state?  There are many things you can do, but start here:
    1. Join a local chapter.  Your voice is stronger when you are one of many.    When we talk about members in Oregon, we need to be able to count you.  It’s important that we have accurate numbers not just of owners and managers, but how many units you represent.
    2. Get active and stay active.  You need to have the most current information and you need to know what steps to take to and when; to be able to influence your local representatives.  Getting active means going to monthly meetings and actually reading newsletters and emails.
    3. Help your local chapter board; maybe even serve on the board.  Every local chapter needs more help.  It’s true that about 10% of the members of each chapter do about 90% of the work.  Maybe you can send out emails, update lists, help with the newsletter or even become an instructor for classes, greet people at meetings. 
    4. Talk to everyone you know and help educate the public.  You are the best person to help the public understand the true nature of the rental housing industry.  You know what you do to provide quality housing for tenants.  So, talk about it!  What will be the effect of Rent Control?  Will rent control cause you to charge higher rents?  Will you change your business practice of only raising rents on a yearly basis and then only when your expenses increase?  How will prohibiting No-Cause Notices change the way you do business?  Will you still be willing to take a risk on a less than “perfect tenant”? Will you be able to charge a smaller deposit or allow payments on deposits for a tenant that has great rental history but spotty credit? Will you be forced to charge higher deposits because you know that you will have to serve a with cause notice if something goes wrong?  Will you be forced to serve a “border-line problem tenant” with a 30 Day with Cause Notice and damage a tenants’ rental history?
    5. Become an active learner. As a rental property owner/manager you have a responsibility to be educated.  You should know Landlord/Tenant law.  We often hear, “Really?  When did that law change?”  Unfortunately, the answer is usually many years ago.  The complaints from tenants about serving notices incorrectly, or telling tenants that they have to move out in 30 days, when the law gives them 60 days, causes lawmakers to think that they need to make more laws and add fines for improper or unfair business practices.  Get educated and encourage every rental owner you know to attend classes and seminars. 
    What can you do?  How can you really have an effect on your community?  You don’t need to have hours of free time or be an expert public speaker.  Become a member of your local chapter and help it become strong and vital.  Talk to everyone you come in contact with, and make sure that your understanding of the law is current.

  • Monday, March 28, 2016 10:18 AM | Anonymous

    While it may seem clear on first reading, the recent change in statute regarding rent increases is leaving even the attorneys scratching their heads.

    One issue that seems clear is that a lease renewal is exempt from the rent increases that apply to month-to-month residencies. A new lease or lease renewal is a contract with its own terms that are not affected by this change in statute.

    It is also clear that you may increase the rent in a month-to-month tenancy with a 90-day written notice, as long as it doesn’t take effect prior to the end of that first year.

    What is not so clear is what happens when by its terms, a lease expires and converts to a month-to-month tenancy. After much discussion and attorney consultation, the Oregon Rental Housing Association, recommends that the most conservative and safest interpretation is to count the first year of tenancy as starting on the day the property transitions to a month-to-month tenancy. After that clock begins, you may lawfully serve a 90-day notice of rent increase so long as it will not be effective prior to the end of the first year of the tenancy (from the day it converted to a MTM).

    There is uncertainty and ambiguity regarding this law change, and on first look it may appear that “first year of tenancy” can include the term of a lease; however, this is a potentially risky move and we don’t want you to take chances that could hurt you in the courtroom, nor do we want any of you to be the test case for this new law. Look for more answers in the coming months and be assured this will be addressed and clarified in the next legislative session. Call the Helpline for assistance if you have any questions about your specific situation.

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