By: Tia Politi, ORHA President
The end is here! October 1, 2022, marks the return to normal for landlords and tenants alike regarding nonpayment of rent and other eligible charges. It also marks the end of the Safe Harbor Period tenants have enjoyed if they provided written proof of application for rent assistance to their landlord on or after July 1, 2021, and before July 1, 2022.
On October 1, 2022, landlords whose tenant applications have not been funded by September 30, 2022, can apply to the Landlord Guarantee Program to be reimbursed in full for their tenants’ Safe Harbor Period: https://www.oregonlgp.org/. Landlords may only apply for reimbursement from the date the renter provided written proof of their application for rent assistance from a qualifying agency. The state plunked $10 million into that fund; hopefully, it will be enough.
Some may have been confused or misled regarding the types of applications that qualify. Those include any emergency rent assistance programs that are publicly funded will trigger the protections, whether funded by state, local, federal, or other funds. This means OERAP (Oregon Emergency Rent Assistance Program), a program run through a local Community Action Program, a local Community-Based Organization, a local foundation, etc. Some tenants have been providing ineligible types of assistance applications – emergency loan requests, Go Fund Me, etc. These types of applications do not qualify, and you will not be able to seek reimbursement from the program.
What types of money owing qualify for reimbursement? Eligible non-payment charges include rent, late charges, utility or service charges, or any other fee as described in the rental agreement or allowed by ORS 90.140, 90.302, 90.315, 90.392, 90.394, 90.560 to 90.584 or 90.630, but do not include payments for damage to the premises.
ORS 90.140 Types of payments landlord may accept or require:
- Applicant screening charges, pursuant to ORS 90.295;
- Deposits to secure the execution of a rental agreement, pursuant to ORS 90.297;
- Security deposits, pursuant to ORS 90.300;
- Fees, pursuant to ORS 90.302; (NSF fees, alarm tampering fees, noncompliance fees, lease-break fees)
- Rent, as defined in ORS 90.100;
- Prepaid rent, as defined in ORS 90.100;
- Utility or service charges, pursuant to ORS 90.315 (4), 90.568 or 90.572; and
- Late charges or fees, pursuant to ORS 90.260
- Manufactured housing park or RV park charges including charges for rent, utilities, services, garbage, cable/satellite/internet, late fees, public service charges
- For cause termination for lawful charges assessed in manufactured housing park or RV park
On October 1, 2022, we also return to the timelier nonpayment notices provided to tenants switching from 10-day notices to 72-hour notices and from 13-day notices to 144-hour notices; however, some attorneys recommend serving a Notice of Termination with Cause if the tenant has accrued substantial past-due charges over the last two-and-a-half years. Seek legal counsel for advice related to your specific situation. Also, beginning October 1, 2022, landlords are not required to include any special notices along with any notice to pay or vacate.
If your tenant accrued debt prior to the initiation of the Safe Harbor Period, that won’t be covered debt so you may want to see what you can obtain from the program and serve notice for any moneys owing outside of that period, or you can serve notice for the entire debt and evict for nonpayment if you don’t want to bother (but who wouldn’t want to bother about getting paid?!!).
Application of Tenant Payments
Many landlords have been trying to work with their renters, by having them agree to a payment plan, but may be causing themselves more problems by applying payments improperly. Remember, beginning March 1, 2022, landlords had to begin applying payments in the usual way.
ORS 90.220 (9)(a) Notwithstanding a provision in a rental agreement regarding the order of application of tenant payments, a landlord shall apply tenant payments in the following order:
(A) Outstanding rent from prior rental periods;(B) Rent for the current rental period;
(C) Utility or service charges;
(D) Late rent payment charges; and
(E) Fees or charges owed by the tenant under ORS 90.302 or other fees, or charges related to damage claims or other claims against the tenant.
Past Tenants – Statute of Limitations
And another reminder…you may recall that for residents whose tenancies terminated during the Protected Period (April 1, 2020 – February 28, 2022), the statute of limitations was tolled. That means you have through February 28, 2023, to initiate legal action to recover any nonpayment balance. It might not hurt to make one last effort to get them to sign a Promissory Note – ORHA form #50, and agree to reasonable payment arrangements, but you can also sue in Small Claims Court, or hire a collection agency to pursue the debt on your behalf, just remember that before pursuing legal efforts you must have made a bona fide effort to collect on the debt. That can include a deposit reconciliation you have already provided.
The Cares Act
For rental owners who hold a federally backed mortgage, the CARES Act is still in place and prohibits termination for non-payment of rent with less than 30 days notice:
Through February 28, 2022, landlords were required to apply any payments received to current rent first and outstanding rent from prior rental periods came last. For landlords who have continued to apply payments to current rent first after February 28, 2022, you may have created waiver. Seek legal advice.
- Property subsidized with federal funds
- Fannie Mae or Freddie Mac loan
- Even one Section 8 voucher holder in multi-unit complex - entire property is subject to Section 4024 of CARES
- Attorneys recommend serving a 30/30 for the debt – a 30-day Notice of Termination with Cause with a 30-day right to cure instead of the usual 14-day cure period
This column offers general suggestions only and is no substitute for professional legal counsel. Please consult with an attorney for advice related to your specific situation.