ORHA News

By: Tia Politi, ORHA President
September 1, 2021

Inspecting your rental properties – especially the inside – can be an uncomfortable experience for all involved. Depending on the relationship and the attitude of both parties, checking out the living space of another person can range from fast, easy and casual, to time-consuming, difficult and even hostile. All endeavors large or small have their parts that are the least fun, so stop procrastinating and go inspect your property – your investment is at stake.

With rental property the old saying, “No news is good news,” becomes, “No news is bad news.”  A resident’s failure to report issues with the unit can indicate that they don’t want you there because they’re doing something they shouldn’t, or not doing something they should. Also, you can’t rely on tenants to always report maintenance issues that can lead to property damage. Sometimes, they don’t know that something is awry.

Getting started
When I don’t have any red flags regarding a tenancy and just need to check the property out, I always like to call or email the resident, let them know it’s time for an inspection and ask what time would work for them in the next week or two. That gives them a sense of control, respect for their time, and breathing room to prepare. But, if I suspect something nefarious is going on, I may just offer the minimum 24-hours’ notice. When would that be the better option? Maybe you’ve received notification from police about a problem at the unit; maybe you’ve done a drive-by inspection and saw cars parked on the lawn, the blinds askew, and trash in the yard; maybe you’ve received a report from a neighbor that there are multiple animals on the premises. Whatever your reasonable suspicions, remember that it can be a Fair Housing violation to treat one tenant differently than another, so take care to apply the same rules to how much time you provide prior to entry, and base your decision on considerations other than membership in a protected class.

Prepare the tenant for what the inspection will entail. Let them know you will need to see inside cabinets, closets and all rooms and outbuildings to check for leaks or potential maintenance issues. If you’ll need to look in the attic or under the house, let them know that too. Bring a flashlight, a ladder or step stool to see things up high, some smoke-in-a-can or a long stick to check smoke and CO alarms, and maybe a few tools in case you find a minor repair that can be addressed at that time.

Imagine how you would feel having someone inspect your home. Would you feel like you were being judged? Maybe a bit defensive? Worried about being called on the carpet for something? Maybe grumpy about having to take the time? One way to help put your tenant at ease is to keep your focus on maintenance. The way I do that is by indicating on my notice to enter or in conversation with them that I need to do a maintenance inspection.  Once at the property I thank them for taking the time, and before starting the inspection ask the tenant how things are with the property.

I go through all the areas of habitability and ask things like, “Is your heat system working properly?” “Do all of your doors and windows open, close and lock properly?” “Are your appliances working properly?” “Are there any leaks or drips you are aware of?” “Is your hot water system working properly?” “Are there any safety issues on the property?” “Do you have any other concerns you want to let me know about?” Starting with these types of questions sends the message that you care about their living conditions, and that your main purpose for being there is to ensure a decent, safe and habitable property, not to judge them for having dirty dishes in the sink.

This is their home, so treat them and their property with respect. One way to do that is by asking permission throughout the inspection. “Is it okay if I look under the sink?” “Sometimes leaks show up in closets, is it okay if I look in the closet?” If you encounter a closed door, don’t just walk in, ask if it’s okay. If they say no to something, just document it and go on. You can always ask tenants to lead the way. One of my colleagues asks the tenants to open doors, cabinets, etc., which can help keep them involved and distracted from any possible negative emotions.

What should you inspect for?
Look for leaks at faucets and water supply lines, drain lines, and exterior spigots. Check your caulking, and look for discoloration in the vinyl around the toilets which could indicate a seeping leak at your toilet flange. Check for soft spots in bathroom floors adjacent to the toilet and tub/shower. Look for cracks in sheetrock around the chimney which could indicate a seeping leak at your flashing. Look for gaps between your gutters and the fascia which could rot not only the fascia itself, but your roof underlayment. Make sure the gutters are clear and the downspouts are draining properly. Look around exterior doors for daylight indicating that your weather stripping needs to be repaired or replaced. Look behind the washer/dryer hookups to ensure they are properly connected. Look for discoloration of the ceiling indicating a possible roof leak. Check the operation of fans in the kitchen and bathrooms. Are they clean and drawing properly? Check the heating systems and filters. Is the home being kept in a sanitary condition? Check for issues of health, safety and ingress/egress, and of course, you will be looking for violations.

Can you take photographs of the property during an inspection? Yes, but, (and there’s always a “but”) tenants have a reasonable expectation of privacy, so no snapping photos of private things. Also, tenants might not be thrilled at the prospect and get grumpy with you about it. On the other hand, how else are you supposed to document maintenance issues or lease violations? One way to be discreet about it is to use a tablet so while you are taking inspection notes on the tablet, you can also be taking pictures. You may come across some interesting personal items left in the open during inspections, but if it isn’t a lease violation, it isn’t any of your business, don’t photograph it and don’t mention it. And, no looking in personal cupboards, drawers, boxes, containers or chests.

One of my past clients had his home up for sale and after a showing to a prospective buyer, the realtor called the owner to report some concerns, including a camera set up in the bedroom, a large mirror hung on the ceiling above the bed, and a variety of “toys” that were not for children being openly displayed. Despite the fact that it weirded everyone out, it was none of their business and not a lease violation, so prepare to see things you may have wished you didn’t, ignore it and walk on.

Outside, make sure your foundation vents are secure, that residents haven’t piled up trash, firewood or personal property against the siding or attached things to the siding. Are they taking care of the yard? Cleaning up animal waste? Disposing of yard debris? Neglecting or causing damage to trees or shrubs? Keeping vegetation off the structures? Remember, even if you don’t have everything spelled out in your lease or addenda, or you only have a verbal agreement, ORS 90.325 spells out residents’ responsibilities to keep the property and grounds, “…as clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, as the condition of the premises permits and… use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances…”

It can be good to have an inspection checklist and have your tenant sign it when the inspection is done to document the condition throughout the tenancy. It can also be helpful to use an inspection app such as Z Inspector, Chapps Rental Inspector, Happy Inspector, Snap Inspect, or Tap Inspect. You can also use the Check-in/Check-out Report - ORHA Form #9 – to document the condition and help you remember what you need to look at inside, and to give you and the tenant something to sign to keep in their file. If the resident isn’t there, or you don’t care to use a form or an app, it’s a good idea to follow up with a written recap of your inspection by mail or email. Also, remember to acknowledge and thank them for the things they are doing right. A kind word can make all the difference in the relationship.

Denial of Entry, Lease Violations & Tenant-Caused Damage
If, during the inspection, the tenant refuses to allow entry to a portion of the premises, or you identify lease violations or tenant-caused damage, I suggest that you document it, but do not address it with the resident during the inspection. Addressing issues at the moment can lead to arguments which can quickly escalate to problems neither one of you is prepared to deal with and stop the inspection in its tracks.

For denial of entry to all or part of the unit, remember that ORS 90.322 allows a tenant to deny entry if the landlord’s stated time and date for entry, “…conflicts with their reasonable and specific plans to use the property.” For example, on the date and time you want to enter, the renter has scheduled a gathering. In a case like that, their denial would likely be considered reasonable. While the statute says landlords have the right of entry after a minimum 24-hour notice, and says the tenant may not unreasonably deny entry, it also says that the landlord may not abuse the right of access or use it to harass the tenant.

Especially now, during the COVID pandemic, there are lots of reports of renters denying entry. One caller shared that every time they have tried to enter for the past six months, the tenant claims to have contracted COVID (apparently again and again). I’m also hearing about denials of entry related to possible exposure and the need to quarantine. It’s a challenging time to be a housing provider and we’re in a situation we’ve never experienced before, so remain calm and consider your options. You may want to delay for a time, but really six months??!! At some point, you may have to take decisive action and serve a notice for unreasonable denial of entry using Notice of Termination with Cause – ORHA Form #38. The tenant has to let you in within the cure period or their tenancy will terminate. Taking a case like that to court these days can be risky. Who knows how a judge would rule? I recommend providing some flexibility, and only serve notice to terminate after two or three denials.

You might also consider writing up something on every notice to enter – 24-Hour Notice to Enter – ORHA form #18 – that you serve, “We will take all COVID-safe precautions prior to entry including double-mask and gloves and will not enter or allow anyone else to enter who has any symptoms of illness or a fever. We will have a forehead thermometer with us to provide evidence if that makes you feel more comfortable. We will only spend as little time in the unit as possible and expect the walk-through will take a maximum of 15 minutes. If the listed time and date for entry conflicts with your plans to use the property at that time, we will accommodate a different time or day within a 48-hour period following our intended date and time of entry; otherwise, please be advised that your tenancy may be terminated as allowed by law for unreasonable denial of entry under ORS 90.322.”

Communications with the renter showing the efforts you made to address any COVID-related concerns and your attempts to be flexible and adapt to their schedule should be helpful in proving that any specific denial was unreasonable.

What if the renter denies access to only a portion of the premises? That also constitutes unreasonable denial. I spoke with a Helpline caller recently who said on her last two inspections, there was one bedroom that the tenant would not allow her to inspect. On each occasion there was always “someone asleep in there.” Uh huh, sure. Remember, that too is a violation. To forestall this possibility, remember to let the renters know that you will need access to every part of the premises, including all rooms, closets, the garage and any outbuildings.

During the inspection, take notes or discreet pictures of any violations, go back to your office and write up either a warning notice – Notice of Non-Compliance – ORHA form #35 – or a Notice of Termination with Cause – ORHA form #38 – letting them know that they have violated their rental agreement and they need to fix the problem or move out. Sometimes a written warning notice is all that’s needed to turn things around, but unless you’re pursuing termination based on Three Strikes in a fixed-term lease, warning notices have no teeth for enforcement. That’s why in many situations it can be best to start with a for-cause notice. If they cure the violation within the cure period, calendar another inspection for four or five months down the road so that if they repeat the same or substantially the same violation, you have the option to terminate the tenancy on a Repeat Violation Termination Notice – ORHA Form #7.

I once discovered tenants had been smoking inside their unit. I documented the evidence, went back to the office and wrote up a notice requiring them to stop immediately, then have all the walls, ceilings and other hard surfaces thoroughly cleaned, all curtains and carpets professionally cleaned, and have the unit treated with an ozone machine. They accomplished most of this before the tenancy ended saving my owner quite a lot of money and in the end their security deposit covered the remainder of correcting the damage. They actually got a small refund.

Sometimes allowing residents to cure violations and continue the tenancy can benefit you from a financial standpoint, and benefit the tenants who may need extra coaching in how to properly care for their unit. At that point, they are motivated to work with you so that they can keep their housing, and may do some or all of the corrective work, saving you money, and hopefully getting their tenancy back on track.

If you have a contentious relationship with the resident, they have indicated their willingness to sue you for a perceived problem, or are prone to raging outbursts, I would have someone else join you for the inspection as a witness. Prepare yourself to maintain control of your own emotions even if subjected to verbal abuse. It doesn’t matter how the tenant behaves, you need to mind your manners. If things escalate, leave immediately and consult an attorney about your options.

Disability-related issues
Sometimes, lease violations are connected to a tenant’s disability. Excess personal property, or failing to maintain the unit in a decent, safe and sanitary condition, can be related to mental illness or indicate physical limitations. Remember, if you have a tenant who is a hoarder, that is considered a mental disorder and you may need to provide more time for them to correct any problems. Sometimes residents just haven’t been given good boundaries or learned reasonable expectations for order and cleanliness. You may want to start with a plan of action and see how it goes before proceeding to termination.

I once had a family with multiple issues discovered on inspection, including stacks of tires in the yard, an unauthorized chicken coop, evidence of a large visiting dog, an unauthorized cat in the attic, failure to maintain the yard, and unsanitary conditions throughout the house. They were very nice folks, paid their rent on time and were very easy to deal with. We didn’t want to get rid of them, just get them to comply with the rental agreement, so we set up a series of 30-day benchmarks and follow-up inspections to give them time to address each area of concern. At each follow-up, we documented their success and in the end, they corrected all of the issues. They really just needed some coaching to turn things around and understand what they were required to do.

We could have issued a for-cause notice requiring them to fix it all within two weeks or terminate the tenancy, but it wouldn’t have been reasonable or even possible for them to correct everything in that time frame. Remember, landlords have the obligation to be reasonable and act in good faith. We don’t all start out the race of life in the same position. We don’t all get born into perfect families who are functional and teach us things we need to know to get along in the world. Also, people with developmental disabilities or other cognitive issues may struggle with complying with the rental agreement and may need additional support, but they need a place to live too. You may not have thought that social service work was part of being a landlord, but it certainly can be.

If you have a resident who is struggling in some way to comply with the terms of the rental agreement or care of the property due to a disability, you can ask if they would like a referral to a social service agency, and see if you can find them some support. I’m not indicating you should put up with tenants who are intentionally disrespecting your property or otherwise choosing to flaunt their misbehavior and have full capacity to comply. That’s very different from a resident who sincerely wants to or intends to comply, just lacks either the mental or physical capacity to do it on their own.

It’s not up to you to set them up with social service help and they have to agree to accept it, but you can provide them with some information on available resources. Call 211 for referrals to services in your area. If the tenant then refuses to access the services they need, at least you know you tried.

Tenant-caused damage or failure to report       
If you discover tenant-caused damage – depending on the severity – you may want to consider making a claim on their renter’s insurance (if they have it), or set up payment arrangements to cover the cost. You can choose to require them to repair the issue at that time, repair it yourself and bill them, or, if it’s something that isn’t impacting the livability of the unit you can always choose to delay the repair, have them pay in advance for the cost of the repair, and hold the money as an additional security deposit so the funds are available at the end of the tenancy. That can be tricky as landlords may not increase the security deposit within the first year of tenancy, except for allowing things like pets, but in a case of discovered damage, that may be seen as a separate issue.

Remember, if you do increase the security deposit either after discovery of tenant-caused damage or later for whatever reason, it must be reasonable and you must provide the tenant with at least three months to pay. You can always provide more time for that, say, an extra $50 per month until it’s paid, but you have to allow at least the three months. If you have a low-income tenant and demand a huge deposit increase with only three months to pay, would a judge think you’re being reasonable? Probably not.

I’ve often been asked about damage that tenants never reported and whether they can be held financially responsible. The answer is yes, but…the law presumes that landlords will be periodically inspecting their properties and so within the statutes exists a concept called, “…knew or should have known.” That means that your failure to inspect makes you responsible for any damage occurring after six months to a year of a tenant’s failure to report problems. And some problems aren’t obvious.

So, if you haven’t inspected in seven years and find the kitchen floor rotted due to a dishwasher leak, how are you supposed to determine when the leak started and what portion of the damage can be attributed to the tenant’s failure to report? Also, if you end up in court over something like that, how do you prove to the judge just what the tenant failed to report and when? You should have known, because you should have inspected.

Inspections can be challenging, and if you really can’t handle it, hire it out. Remember, no news is (usually) bad news.

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

The CDC Issued a New Order effective August 3^rd, 2021

The U.S. Centers for Disease and Control (CDC) issued a new [narrower and targeted] order effective August 3^rd, 2021 temporarily halting evictions in counties with heightened levels of community transmission in order to respond to recent, unexpected developments in the trajectory of the COVID-19 pandemic, including the rise of the Delta variant. It is intended to target specific areas of the country where cases are rapidly increasing, which likely would be exacerbated by mass evictions. Accordingly, subject to the limitations under "Applicability," a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any county or U.S. territory while the county or territory is experiencing substantial or high levels of community transmission of SARS-Co V -2. This order is effective through October 3, 2021.

Where Does It Apply?

This Order applies in U.S. counties experiencing substantial and high levels of community transmission levels of SARS-CoV-2 as defined by CDC, as of August 3, 2021. If a U.S. county that is not covered by this Order as of August 3, 2021 later experiences substantial or high levels of community transmission while this Order is in effect, then that county will become subject to this Order as of the date the county begins experiencing substantial or high levels of community transmission. If a U.S. county that is covered by this Order no longer experiences substantial or high levels of community transmission for 14 consecutive days, then this Order will no longer apply in that county, unless and until the county again experiences substantial or high levels of community transmission while this Order is in effect.

This Order does not apply in any state, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in this Order or to the extent its application is prohibited by Federal court order. In accordance with 42 U.S.C. 264(e), this Order does not preclude state, local, territorial, and tribal authorities from imposing additional requirements that provide greater public-health protection and are more restrictive than the requirements in this Order.

What Does the CDC Order Say?

This Order is a temporary eviction moratorium to prevent the further spread of COVID-19. This Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract. Nothing in this Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract.

Nothing in this Order precludes evictions based on a tenant, lessee, or resident: (1) Engaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; (3) damaging or posing an immediate and significant risk of damage to property; ( 4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or (5) violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest).

Any evictions for nonpayment of rent initiated prior to issuance of this Order but not yet completed, are subject to this Order. Any tenant, lessee, or resident of a residential property who previously submitted a Declaration, still qualifies as a "Covered Person" and is still present in a rental unit is entitled to protections under this Order. Any eviction that was completed before issuance of this Order including from August 1 through August 3, 2021 is not subject to this Order, as it does not operate retroactively.

Under this Order, covered persons may be evicted for engaging in criminal activity while on the premises. But covered persons may not be evicted on the sole basis that they are alleged to have committed the crime of trespass (or similar state-law offense) where the underlying activity is a covered person remaining in a residential property for nonpayment of rent. Permitting such evictions would result in substantially more evictions overall, thus increasing the risk of disease transmission as otherwise covered persons move into congregate settings or experience homelessness. This result would be contrary to the stated objectives of this Order, and therefore would diminish their effectiveness. Moreover, to the extent such criminal trespass laws are invoked to establish criminal activity solely based on a tenant, lessee, or resident of a residential property remaining in a residential property despite the nonpayment of rent, such invocation conflicts with this Order and is preempted pursuant to 42 U.S.C. 264(e).

How Do Resident’s Qualify Under This Order?

To qualify for the protections of this Order, a tenant, lessee, or resident of a residential property must provide a completed and signed copy of a declaration with the elements listed in the definition of "Covered person" to their landlord, owner of the residential property where they live, or other person who has a right to have them evicted or removed from where they live. To assist tenants and landlords, the CDC created a standardized declaration form that can be downloaded here: https://www.cdc.gov/coronavirus/2019-ncov/communication/EvictionProtectDeclare_508.pdf

Tenants, lessees, and residents of residential property are not obligated to use the CDC form. Any written document that an eligible tenant, lessee, or resident of residential property presents to their landlord will comply with this Order, as long as it contains the required elements of "Covered person" as described in this Order. In addition, tenants, lessees, and residents of residential property are allowed to declare in writing that they meet the elements of "Covered person" in other languages.

All declarations, regardless of form used, must be signed, and must include a statement that the tenant, lessee, or resident of a residential property understands that they could be liable for perjury for any false or misleading statements or omissions in the declaration. This Order does not preclude a landlord challenging the truthfulness of a tenant' s, lessee's, or resident's declaration in court, as permitted under state or local law. In certain circumstances, such as individuals filing a joint tax return, it may be appropriate for one member of the residence to provide an executed declaration on behalf of the other adult residents, party to the lease, rental agreement, or housing contract.

The declaration may be signed and transmitted either electronically or by hard copy. As long as the information in a previously signed declaration submitted under a previous order remains truthful and accurate, covered persons do not need to submit a new declaration under this Order. However, eligibility for protection will be based on the terms of this Order.

What If I Violate the Order?

Under 18 U.S.C. 3559, 3571; 42 U.S.C. 271; and 42 CFR 70.18, a person violating this Order may be subject to a fine of no more than $100,000 or one year in jail, or both, if the violation does not result in a death, or a fine of no more than $250,000 or one year in jail, or both if the violation results in a death, or as otherwise provided by law. An organization violating this Order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death or as otherwise provided by law. The U.S. Department of Justice may initiate criminal proceedings as appropriate seeking imposition of these criminal penalties. One should fairly expect that violation of this order would also provide a tenant with a legal defense in a state eviction proceeding.

The full CDC Order may be found at: https://www.cdc.gov/coronavirus/2019-ncov/covid-eviction-declaration.html

Good Luck in Our Ever-Changing World

Substantial changes in landlord-tenant law are in effect under the mandates of SB 278, signed into law on June 24, 2021. These changes are temporary but dramatically impact your rights to terminate for nonpayment through February 28, 2022. To further complicate matters, the CDC has extended their eviction moratorium through July 31, 2021.

Effective July 1, 2021, SB 278 requires that when serving a notice for nonpayment, the landlord must include a notice about a tenant’s rights to be protected from eviction. This notice must also be included with any court summons for eviction for nonpayment. “Nonpayment” means the nonpayment of a payment that is due to a landlord, including a payment of rent, late charges, utility or service charges or any other charge or fee as described in the rental agreement or ORS 90.140, 90.302, 90.315, 90.392, 90.394, 90.560 to90.584 or 90.630.

The required notice can be found at the ORHA Website, and the ORHA Forms Store site, and has been added to nonpayment forms on the forms store, including 10-Day Notice to Pay or Vacate for Nonpayment of Rent – ORHA form 4A, 13-Day Notice to Pay or Vacate for Nonpayment of Rent, ORHA form #44A, and Notice of Termination with Cause – ORHA form #38 (just in case you’re using a for-cause notice to require payment of other charges).

If, after serving a notice of termination for nonpayment, the Tenant provides the Landlord with documentation that they have applied for rent assistance, a Landlord may not deliver a termination notice for nonpayment or initiate or continue an action for possession based on the notice for nonpayment for 60 days. “Documentation” includes electronic mail, a screenshot or other written or electronic documentation from a rent assistance provider verifying the submission of an application for rental assistance.

If an eviction action has been filed and the Tenant provides the required documentation at or before the first appearance in court, the Tenant will be entitled to a 60-day stay of the action, while the rent assistance application is pending.

If, after the 60-day waiting period, the nonpayment balance remains unpaid, The Housing and Community Services Department shall provide a grant to a third party to make distributions to compensate landlords who, under section 2 of this 2021 Act, have delayed termination notices or eviction proceedings. A landlord may apply for compensation for nonpayment that accrued during the delay if the landlord demonstrates that:

1. The tenant’s application for rental assistance was denied; or
2. Sixty days have passed since the tenant provided documentation of application for rental assistance without the landlord receiving rental assistance.

Courts will dismiss eviction actions for nonpayment if the court determines that:

• The landlord failed to attach the notice as required.
• The tenant’s nonpayment was substantially caused by the landlord’s failure to reasonably participate with a rental assistance program.
• The landlord receives rental assistance covering the rent owed under the notice.
• The tenant provided the landlord with documentation of application for rental assistance as described in subsection (2) of this section before the claim was filed. 

If a Landlord violates this section:

• A tenant may obtain injunctive relief to recover possession or address any other violation;
• The tenant has a defense to an action for possession by the landlord.

Notwithstanding ORS 105.137 (4), if a claim for possession is dismissed under this section, the tenant is not entitled to prevailing party fees, costs, or attorney fees if the landlord:

• Delivered to the tenant all notices required under subsection (3) of this section as required;
• Did not know, and did not have reasonable cause to know, at the time of commencing the action that the tenant had provided documentation of application for rental assistance under subsection (2) of this section; and
• Promptly dismissed the action upon becoming aware of the documentation of application for rental assistance.

CDC Moratorium Extension

The CDC moratorium prohibits eviction of “covered persons,” and applies in states whose rules are less restrictive than the CDC rules. Since the implementation of the CDC rules months ago, Oregon’s rules have been considered by many to be more restrictive; however, with this one-month extension, and the new rules imposed by SB 278, we are unsure if this is still the case.

This CDC moratorium prohibits Landlords from taking action against Tenants based on nonpayment if they have provided their Landlord with a declaration asserting various conditions that prevent them from paying. You can read the CDC moratorium rules and find the Tenant Declaration at: https://www.cdc.gov/coronavirus/2019-ncov/covid-eviction-declaration.html

The Takeaway

Housing providers are strongly encouraged to seek legal advice prior to serving any notice of termination for nonpayment as we cannot be sure how the two laws intersect, or which one a court may rule takes precedence over the other. If the CDC moratorium is not extended beyond July 31, 2021, housing providers will only be required to comply with the mandates of SB 278; however, it is important to note that the protections offered to renters by the bill remain in effect through February 28, 2022.

June 21, 2021

In this recording we hear from Jason Miller, Legislative Director for the Oregon Rental Housing Association and Community Alliance of Tenants Executive Director Kim McCarty. Oregon’s eviction moratorium is set to expire at the end of this month, but lawmakers just passed a 60-day extension for tenants who can show proof that they’ve applied for rental assistance. It doesn't matter if that assistance has not yet come through.

source: https://www.opb.org/article/2021/06/17/oregon-eviction-moratorium-end-date-whats-next/

By: Jason Miller, ORHA Legislative Director
March 23, 2021

The flood gates opened this year with a tidal wave of bills targeting the rental industry. After many hearings, work groups and discussions with legislators here is where we sit on the most important bills. Thank you to all those who volunteered to write their legislators and/or testify to the committees. It truly made a difference.

HB 2484 - This bill will require Housing Providers to allow Family Child Care in their properties. This bill is very popular and has bipartisan support. Housing Providers flooded legislators with letters and testimony. As a result, legislators created a workgroup to address Housing Provider concerns. We are expecting to see a draft addendum of negotiated changes addressing some of these concerns in the next few weeks.

HB 2372 - This bill would eliminate a Housing Provider’s ability to terminate a rental contract for no cause. The last public hearing was on March 2nd, 2021. Housing Providers once again flooded legislators with letters and testimony letting their voices be heard. As a result, no new meetings have been scheduled for this bill.

HB 2427 - This bill would mandate a uniform rental application and screening. A Housing Provider must accept this uniform screening from a tenant without the ability to verify the information. ORHA opposes this bill. This bill is scheduled for a work session on March 30th, 2021. Contact your local legislator, we need to prevent this bill from passing. Find who your local legislators are here: https://www.oregonlegislature.gov/FindYourLegislator/leg-districts.html

SB 282-3 - The original language of this bill was very one-sided. ORHA, in collaboration with other Housing Provider groups, requested a work group to discuss how we can make the bill more fair for everyone. Chair Jama then formed a small work group of Housing Providers and Tenant advocates. The work group was a positive experience and created a bill that was more fairly balanced. This bill will extend a grace period until Feb 28th 2022 on past due rents from the moratorium periods. It does not extend the moratorium. The language assuming all evictions to tenants with past due balances is retaliation from the Housing Provider has been removed. It allows tenants to have long term guests during this emergency period, but allows Housing Providers to screen them. The original bill did not allow screening. Because of the concessions made, ORHA and the other Housing Provider Groups are taking a neutral stance on this bill.

SB 330 - ORHA is in support of SB 330. This bill creates a safety net in the form of a tax credit for Housing Providers who are unable to receive unpaid rent from the pandemic period through the Landlord Compensation Fund or tenant based assistance. In a recent survey by DHM Research, 73% of Oregonians sampled support tax credits for Housing Providers who have lost rent due to the COVID pandemic. Let’s hope our legislators listen to their constituents. A public hearing and work session is scheduled for March 30th, 2021. Please write to your local legislator to show your support for SB 330. Find who your local legislators are here: https://www.oregonlegislature.gov/FindYourLegislator/leg-districts.html

Despite the difficulty of being in the middle of a pandemic and working remotely, our voices have been heard. We may not be 100% happy with pending legislation, but we are in a much better position than when the session started. Thanks to all our members, our lobbyist and legislative team, we are no longer facing a mountain of one-sided bills that would harm the industry. 

March 16, 2021

Listen to Bill Lundun of Newsradio 1120 KPNW - The Wake Up Call interview Tia Politi regarding the state of Oregon's Rental Housing industry.  Tia Politi is a licensed property manager, rental owner, and president of the Rental Owners Association of Lane County. She serves as the secretary for the Oregon Rental Housing Association (ORHA) and ORHA Education, Inc., heads up the ORHA Forms Committee, serves as a volunteer instructor for St. Vincent de Paul’s Second Chance Renter’s Rehab Program, and teaches classes in rental management throughout the state, including a class teaching high school seniors the basics of renting a home. Tia owns and operates Rental Housing Support Services, LLC, providing consultation, landlord-tenant training, mediation, notice prep and service, eviction support, and telephone helpline services.

By: Brooks Hayes, President of Hayes Insurance Group
March 11, 2021

With most Landlord Dwelling insurance policies, childcare or any other business conducted on the property is not allowed. Most carriers will send you either a non renewal letter or if they feel there's a real liability they will send you a cancellation for violation of contract. But even if they didn’t cancel the policy, the simple fact that it’s excluded from your policy affords you no coverage.

If the law (proposed HB 2484) ends up anything like it is in California, you’re in for some real surprises. Not only are you not allowed to evict a tenant that starts a daycare, the tenant only has to notify you its going to happen, with or without your permission. Your only defense is you are allowed to increase the deposit by 2x and sometimes 3x, you are however NOT allowed to evict or raise the rents because of the increased traffic or liabilities, you’re not even allowed to require nor are the tenants mandated to have liability insurance, they can have the parents of the children sign an agreement that they don’t have liability insurance and that the landlords insurance may not cover liabilities. So does that relieve you of any liabilities then? NO I don’t think so! The second there’s an accident they come looking for the deepest pockets. The tenant decided it wasn’t worth the premium to acquire the correct insurance or any, the landlord dwelling policy excludes all business conducted on the property, so that leaves the landlord to defend claims and pay liabilities on their own. With this being said, it would be in a landlords best interest to acquire a commercial childcare business insurance to offset any open liability with an average cost of thousands of dollars per year. What about upgrades? As a landlord are you going to have to bring the property up to childcare regulations? Does the property have any lead based paint? What if a nail works loose and a child is injured? I believe there is a huge amount of risk that could potentially be directed to the landlord. I’m sure the insurance carriers will see an opportunity, they will sit back and assess for a few years and then raise rates on all properties to account for the coverages that will be required, So whether or not you have a daycare or not, will not change the fact you’ll be paying the price for it.

This is my opinion and not legal advise, I advise you to talk with your attorney and insurance agent to see how it will effect the policy you have in place.

References Cal. Health and Safety Code section 1597.40 (2021)

Penalties for mistakes made can be expensive, we recommend you consult an attorney before you take any action against your resident(s).

HB 4401 requires Housing Providers to send the Notice of Eviction Protection and the Tenant Declaration form under certain circumstances. During the new Grace Period, if a Housing provider serves a 72- or 144-hour notice for non-payment (remember these are now 10- or 13-day notices through the end of June) for current rents due, serves any notice for termination for non-payment of rent or other charges, or sends a statement of account indicating that the resident has through March 31, 2021 to pay amounts owing that accrued during the Emergency Period that ended December 31, 2020, these forms MUST be included.

Residents must provide a signed declaration for household or tenancy declaring financial hardship, delivered to the Housing Provider in writing, email, text message or other method reasonably calculated to achieve receipt. If the declaration is provided to the Housing Provider, they are entitled to withhold payment and are not considered in default unless they fail to pay the balance by June 30, 2021.

Housing Providers are not required to send the Notice of Eviction Protection and the Tenant Declaration if they intend to allow their residents the full Grace Period through June 30, 2021.

You can see the final version of the bill here:

House Bill 4401 (Dec 2020)

To read more about the House Bill 4401 (Moratorium 3.0) defined by Brian Cox Attorney, read his news article:

House Bill 4401 ~ Moratorium 3.0 Explained 

Requires Housing Providers to provide impacted Residents with written notice informing them of their right to submit a declaration of financial hardship made under penalty of perjury in a form proscribed in HB 4401.  Sample Form:

Notice of Eviction Protection & Declaration of Financial Hardship

Housing Providers may find updated information on the Oregon Housing and Community Services landlord compensation fund by visiting:

https://www.oregon.gov/ohcs/housingassistance/Pages/Landlord-tenant-resources.aspx

On December 21, 2020, the Oregon legislature in an historic third emergency session, passed legislation extending the moratorium (for tenants that sign a declaration of hardship) to June 30, 2021. Along with the extension, state funds have been set aside for an optional housing provider based rent assistance program with the requirement the housing provider forgive 20% of the past due rents. Landlords are not required to forgive 20% if they do not apply for assistance. House Bill 4401 and formally known as LC-18, is very detailed and ORHA is working on educational materials, new forms, and classes to educate housing providers on the changes. It is projected Housing Providers will not be able to apply for assistance until late January as the infrastructure is not ready. Keep an eye out for future updates from ORHA.

You can see the final version of the bill here:

House Bill 4401 (Dec 2020)

To read more about the House Bill 4401 (Moratorium 3.0) defined by Brian Cox Attorney, read his news article:

House Bill 4401 ~ Moratorium 3.0 Explained 

Requires Housing Providers to provide Residents with written notice informing them of their right to submit a declaration of financial hardship made under penalty of perjury in a form proscribed in HB 4401.  Sample Form:

Notice of Eviction Protection & Declaration of Financial Hardship

Housing Providers may find updated information on the Oregon Housing and Community Services landlord compensation fund by visiting:

https://www.oregon.gov/ohcs/housingassistance/Pages/Landlord-tenant-resources.aspx

By: Brian Cox, Attorney at Law
12/23/20

On December 21st, 2020, the Oregon Legislature met in special session, passing House Bill 4401effective immediately upon Governor Brown’s signature. So, what does this change mean to residential Housing Providers in Oregon? Here’s my ‘take’ on the most current version of today’s ‘Rules’ *

What Does HB 4401 Do?

• Prohibits evictions without cause before July 1, 2021, except (after the first year of occupancy) for circumstances under ORS 90.427 (5) involving the demolition or conversion of the dwelling unit, major repairs or renovations when the dwelling unit is or will be unsafe to occupy, or the occupancy of the dwelling unit by the Housing Provider or the Housing Provider’s family member or someone who purchases the dwelling unit.
• Prohibits Housing Providers from charging late fees for rent accruing between April 1, 2020, and June 30, 2021.
• Extends the emergency period and the end of the grace period and prohibits eviction for nonpayment until June 30, 2021 for Residents providing proof of financial hardship, and for Residents who do not provide proof of financial hardship, extends the emergency period to December 31, 2020 and requires Residents to pay past due rent by March 31, 2021.
• Provides grant payments directly to Housing Providers accepting certain conditions, with multiple application access points and procedures for ease of applying for payments.
• Requires Housing Providers to provide Residents with written notice informing them of their right to submit a declaration of financial hardship made under penalty of perjury in a form proscribed in HB 4401.
• Changes the Timelines for Non-Payment Termination Notices.

How Long is the Moratorium Extended?

• “No-cause” evictions and late fees are prohibited until after June 30, 2021.
• If the “first year of occupancy” ends between April 1, 2020 and August 31, 2021, the “first year of occupancy” is extended for the purposes of a termination notice without cause to mean a period lasting until August 31, 2021.
• “Landlord-cause” evictions pursuant to ORS 90.427(5)(a) – (d) (change of use, substantial repairs/renovations, housing provider or immediate family member moving into home, buyer or buyer’s immediate family moving into home) are allowed after the first year of occupancy.
• The emergency period and the end of the grace period is extended to June 30, 2021 for Residents providing a declaration of financial hardship, and requires Residents who provide their declaration of hardship to pay all past due rent by July 1, 2021.
• The Resident’s declaration describes their financial hardship experienced because of one or more of the following conditions on or after March 16, 2020:

• For Residents who do not provide a declaration of hardship, the emergency period is extended to December 31, 2020 and requires Residents to pay all past due rent accruing between April 1, 2020 – December 31, 2020 by March 31, 2021.

How Do I Receive Grant Payments?

• Housing Providers provide Residents with a written notice informing them of their right to submit a declaration of financial hardship signed under penalty of perjury.

• Residents must provide a signed declaration for every household or tenancy declaring financial hardship, delivered to the Housing Provider in writing, email, text message or other method reasonably calculated to achieve receipt.

• Housing Providers complete an online application detailing all unpaid rents from qualified Residents and the Housing Provider’s agreement to forgive 20 percent of outstanding unpaid rent.
• Housing Providers can apply more than once, if new arrearages arise after an initial application.

What Conditions Must Housing Providers Accept to Receive Payments?

To qualify, Housing Providers must:

A. Submit a single application for all of the Residents who have not paid rent and who have delivered a declaration to the Housing Provider stating that they have experienced certain financial hardships;
B. Include copies of all Resident declarations;
C. Provide a description of the unpaid rents not collected since April 1, 2020;
D. Agree to forgive 20% of the unpaid rents not collected since April 1, 2020 through the m date of application for payment;
E. Agree to repay the Department any rent that a qualified Resident or someone on the Resident’s behalf later pays;
F. Not include unpaid rents owed by immediate family members of the Housing Provider; and,
G. Agree not to issue no-cause or non-payment termination notices to the Residents while the application is pending.

Rent Reduction - By agreeing to receive grant funds, Housing Providers agree to accept 80% of unpaid rent accruing between April 1, 2020 and the date of application for payment (ending June 30, 2021).

• $150,000,000 of state general funds are authorized for distribution and administrative support. OHCS will prioritize payments to Housing Providers with fewer units or a higher percentage of unpaid rents and set qualifications, priorities, restrictions, and limits for distributing funds to Housing Providers. OHCS will provide Residents with notice of rent payments and forgiveness on their behalf. The grant payments will be delivered to Housing Providers by local housing authorities.
• $50,000,000 are also authorized for Residents to apply for grant payments to their Housing Providers. OHCS will also distribute rent assistance to recipients of federal Coronavirus Aid, Relief, and Economic Security (CARES) Act Emergency Solutions Grants, which includes community action agencies and culturally specific providers, who will make payments directly to Housing Providers upon Residents’ applications.
• The rent assistance program is designed to also distribute any federal funding for rent assistance in the still-being-negotiated-between-Congress-and-President stimulus package.

• A Housing Provider may deliver a written notice to a Resident before the end of the grace period stating that the Resident continues to owe any rent due. The notice must also include a statement that eviction for nonpayment of rent, charges and fees accrued from April 1, 2020 to June 30, 2021 is not allowed to be filed until after June 30, 2021.
• The notice may also include information regarding tenant resources and may offer a voluntary payment plan for the nonpayment balance. If the notice offers a voluntary payment plan, the notice must state that the payment plan is voluntary. The notice may include a request that the Resident contact the Housing Provider to discuss the voluntary payment plan.
• If the Resident has not already provided a declaration of financial hardship, the Housing Provider must provide a written notice informing them of their right to submit a declaration of financial hardship signed under penalty of perjury as well as a form declaration along with every reminder notice.

How are Termination Notices for Non-Payment Timelines Changed?

• Every termination notice or summons for non-payment of rent delivered before June 30, 2021 must be accompanied by a written notice informing the Residents of their right to submit a declaration of financial hardship signed under penalty of perjury, together with a declaration form;
• The 72-hour notice is now a 10-Day notice ending at 11:59 PM; and,
• The 144-hour notice is now a 13-Day notice ending at 11:59 PM.
• The changed timelines end 6/30/21.

Revise Your Non-Payment Notices Accordingly

Filing Evictions

• A Housing Provider who files a complaint for possession under ORS 105.105 to 105.168 based on a notice for nonpayment under ORS 90.392, 90.394 or 90.630 shall file with the complaint a declaration under penalty of perjury stating that the Housing Provider gave the Resident written notice informing them of their right to submit a declaration of financial hardship signed under penalty of perjury together with a form declaration, and that the Housing Provider is not aware of any declaration signed or delivered by the Resident. A copy of the written notice informing them of their right to submit a declaration of financial hardship signed under penalty of perjury together with a form declaration shall be attached to and served with the Summons. A Housing Provider may not challenge the Resident’s declaration.
• Evictions may continue to occur for violations of the rental agreement, other than nonpayment of rent, as well as for non-payment that occurred prior to April 1, 2020.
• A landlord’s acceptance of a partial payment of rent before the end of the grace period does not constitute a waiver of a landlord’s right to terminate the tenancy for:

(A) A violation of the rental agreement, notwithstanding ORS 90.412 (2); or Revise Your Non-Payment Notices Accordingly
(B) Nonpayment of the rent balance owed under ORS 90.394 after the end of the grace period, notwithstanding ORS 90.417 (4).

• If a tenancy terminates before the end of the grace period, a Housing Provider may claim from the security deposit or last month’s rent deposit to repay the unpaid rent balance that accrued during the emergency period under ORS 90.300 (7) or (9).

What If I Make A Mistake?

• The Court is required to dismiss an eviction action filed before end of the grace period based solely on nonpayment if the Resident declares financial hardship or if the Housing Provider fails to provide proof they gave the Resident a notice of rights and declaration form.
• The Resident has a defense to an eviction proceeding – but – court costs and attorney fees \\won’t be assessed against the Housing Provider if they did not know, and did not have reasonable cause to know, at the time of commencing the action that the Resident had submitted a completed form; and promptly dismissed the action, upon becoming aware of the completed form.
• The Resident has a private right of action against their Housing Provider for violations of this Act, providing for injunctive relief and statutory damages equal to the greater of three month’s rent or three times actual damages sustained by the Resident.

* This update is not intended as legal advice. There are a number of other technical requirements in HB 4401, and you should certainly consult a knowledgeable attorney before taking any eviction or collection action. Please obtain the advice of a knowledgeable attorney for any policy change or decisions regarding residential and commercial Landlord/Tenant matters, as well as laws that impact your local jurisdictions.

Housing Providers may find updated information on the Oregon Housing and Community Services landlord compensation fund by visiting https://www.oregon.gov/ohcs/housing-assistance/Pages/landlord-compensation-fund.aspx

Click below for

Notice of Eviction Protection & Declaration of Financial Hardship