ORHA News

By Clay Carsner
June 6, 2020

Below is and updated summary of HB 4213 which passed the House at 43-14 and Senate at 19-8 on Friday, June 26th. It contains the writer’s opinions and interpretation of the bill.

Section 1.
This section states that it circumvents contractual law by the state of Oregon due to the declaration of a state of emergency by the Governor.

Section 2.
Adding the bill and making it a part of ORS chapter 90.

Section 3.
Defining the "emergency period" from 04/01/2020 to 09/30/2020.

Defining "nonpayment of rent" as rent, late charges, utility charges or service charges accrued during the emergency period as outlined in the rental agreement.

Defining "nonpayment balance" as all or a part of the net total amount of all items of nonpayment by a tenant.

Defining " "termination notice without cause" as a notice delivered by a landlord under ORS 90.427 (3)(b), (4)(b) or (c), (5)(a) to (c), or (8)(a)(B) or (b)(B).  This does not include (5)(b), the selling of a rental unit and a buyer moving in.

During and after the emergency period a landlord may not and may not threaten to:

(a) Deliver a notice of termination of a rental agreement based on a tenant’s nonpayment balance; 

(b) Initiate or continue an action under ORS 105.110 to take possession of a dwelling unit based on a notice of termination for nonpayment delivered on or after April 1, 2020; 

(c) Take any action that would interfere with a tenant’s possession or use of a dwelling unit based on a tenant’s nonpayment balance; 

(d) Assess a late fee or any other penalty on a tenant’s nonpayment; or

(e) Report a tenant’s nonpayment balance as delinquent to any consumer credit reporting agency.  

When a landlord receives payments from a tenant or on behalf of a tenant and before applying those payments to the nonpayment balance a landlord shall first apply the payments, in the following order, to: 

(a) Rent for the current rental period; 

(b) Utility or service charges;

(c) Late rent payment charges; and

(d) 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.

This is a change from ORS 90.222 (9)

If the tenant's one year of tenancy expired during the emergency period and a landlord wants to give a no cause termination notice, they may do so after the emergency period ends and is extended to mean a period lasting until 30 days following the emergency period.

Starting on 10/01/2020 a tenant with a nonpayment balance has a six-month grace period ending on 03/31/2020 to pay the nonpayment balance.

On 10/01/2020 a landlord may deliver a written notice to the tenant that the emergency period ended and that all rent, charges, and fees from 10/01/2020 are due and must be paid or a termination notice may be given.

The nonpayment balance that accrued from 04/01/2020 to 09/30/2020 is still due and must be paid with no late charge.

The tenant has a six-month grace period to repay the nonpayment balance by 03/31/2021.

The tenant has 14 days to respond from the receipt of the notice to pay the nonpayment balance by the end of the six-month grace period. Failure of a response from the tenant to use the grace period may result in a 50% of one month’s rent following the end of the grace period.

The tenant’s response must be actual notice as per 90.150 or by electronic means.

If a landlord violates Section 3, a tenant may recover an amount up to three months’ rent, actual damages, and or attorney fees.

Section 4 states that section is repealed on 03/31/2021.  

Section 5 deals with the grace period which runs from 10/01/2020 to 03/31/2021. The language is very similar to Section 3.

Section 6 is a repeal of section 5 on 03/31/2021.

Section 7 is a "tolled" statement for the period of limitation of the bill for claims by a landlord based on the tenant's nonpayment or nonpayment balance as defined in Section 3.

*Tolling is a legal doctrine that allows for the pausing or delaying of the running of the period of time set forth by a statute of limitations, such that a lawsuit may potentially be filed even after the statute of limitations has run.

Section 8 declares an emergency and takes effect on passage.

Link to Bill: https://olis.oregonlegislature.gov/liz/2020S1/Downloads/MeasureDocument/HB4213/A-Engrossed 

PRESS RELEASE Foreclosure and Eviction Protections Pass House.pdf

June 24, 2020

Per today’s special session, here are some of the highlights of HB 4213. It is in currently in flux and there may still be changes. There is a work session on the bill tomorrow sometime after 10 AM.

The bill will extend the eviction moratorium (emergency period) until September 30, 2020.  This period runs from 04/01/2020 to 09/30/2020.

If a tenant does not pay October's rent and going forward from 10/01/2020, a landlord may issue a 72-hour notice for non-payment of rent. All provisions of ORS chapter 90 are back in force except for Section 3 of the bill. 

Highlights of section 3:

A landlord may not issue any termination notice for non-payment of rent, charges, fees, utility charges or any other service charge or fee, as described in the rental agreement or ORS 91.090, 91.210 or 91.220, during the emergency period. This is called "non-payment balance".

A landlord may issue a notice to the tenant to come into a payment agreement for the rent, charges, fees, ETC. (non-payment balance) that have accrued during the emergency period. This does not include late fees as they are prohibited during the moratorium. Tenant has 14 days to respond. The period for the repayment is called the "grace period". This runs from 10/01/2020 to March 31, 2021. The penalty for a tenant that does not respond back to a landlord is a onetime penalty of 50% of the month's rent.

If the tenant’s one year of tenancy expired during the emergency period and a landlord wants to give a no cause termination notice, they may do so.

The date for giving the no cause termination notice is at the end of the emergency period, 09/30/2020.

All rent, charges, & fees after the emergency period expires, 09/30/2020, are due and must be paid as usual. If not a termination notice may be given.

If a landlord violates the provision of Section 3 in the bill, a tenant may recover 3 months’ rent plus actual damages and attorney’s fees.

Section 3 ends on 03/30/2021.

Of note in today's hearing, ORS 90-427 5 (b) was discussed at length and may be included in the final bill. This is where a rental unit is sold and the buyer is moving in with a 90-day notice with relocation money if it applies.

The -6 amendment was also discussed at length also. This amendment would provide money for rent (non -payment balance) that is not paid from 04/01/2020 to the end of the emergency period.

https://olis.oregonlegislature.gov/liz/2020S1/Downloads/ProposedAmendment/18005

The following link is also a good read of the bill:
https://olis.oregonlegislature.gov/liz/2020S1/Downloads/CommitteeMeetingDocument/223409 

Link to the bill:
https://olis.oregonlegislature.gov/liz/2020S1/Downloads/MeasureDocument/HB4213/Introduced

Link to the -7 amendment:
https://olis.oregonlegislature.gov/liz/2020S1/Downloads/ProposedAmendment/18011

May 19, 2020

The state has provided $8.5M in rent assistance to help struggling Oregonians impacted by COVID-19. That money was allocated to the following organizations:

ACCESS, Inc.
(541) 779-6691
$459,585

Lane County Human Services Commission (LCHHS)
(541) 682-3798
$929,025

Community Action (CAO)
(503) 648-6646
$764,957

Mid-Columbia Community Action Council (MCCAC)
(541) 298-5131
$140,357

Community Action Program of East Central Oregon (CAPECO)
(800) 752-1139
$186,271

Mid-Willamette Valley Community Action Agency (MWVCAA)
(503) 585-6232
$771,012

Community Action Team, Inc. (CAT)
(503) 397-3511
$299,610

Multnomah County Department of Human Services
(503) 988-7453
$1,639,002

Community Connection of Northeast Oregon (CCNO)
(541) 963-3186
$162,250.00

Neighborhood Impact (NIMPACT)
(541) 548-2380
$438,696

Clackamas County Social Services Department (CCSSD)
(503) 655-8640
$457,097

Oregon Human Development Corporation (OHDC)
(855) 215-6158
$455,813

Community in Action (CINA)
(541) 889-1060
$96,070

Oregon Coast Community Action (ORCCA)
(541) 435-7080
$233,165

Community Service Consortium (CSC)
(541) 752-1010
$583,383

United Community Action Network (UCAN)
(541) 672-5392
$489,779

Klamath/Lake Community Action Services (KLCAS)
(541) 882-3500
$196,738

Yamhill Community Action Partnership (YCAP)
(503) 472-0457
$197,192

April 23, 2020

The Interim Legislative Emergency Board just passed $8.5 million for rental assistance due to impact of Covid 19. It looks like $12 million at first blush, but $3.5 of that went for safe shelter alternatives.

Staff summary:

By: Brian Cox, Attorney at Law
April 15, 2020

As the effects of the COVID-19 pandemic continue to unfold in Oregon, residential and commercial landlords seeking to regain possession of their rental properties are currently faced with a myriad of restrictions from several vectors, radically changing their ‘pre-pandemic’ way of doing things.

Rationale: There are two primary reasons driving these actions: limiting the spread of the coronavirus by limiting evictions or otherwise ‘de-housing’ people in order to avoid greater COVID-19 exposure; and, the pragmatic recognition that the current extraordinary health needs leading to the closure of restaurants, schools, and all ‘non-essential’ businesses will cause a wide swath of our population to lose their jobs and businesses in order for everyone to ‘shelter in place’ and care for homebound family members, leaving many Oregonians unable to pay their rent through no fault of their own.

Executive Orders: Under Governor Brown’s current Executive Orders, landlords may not issue termination notices or file, prosecute, or execute ‘economic evictions’ for non-payment of rent, utilities, service charges, late fees, or other charges, without regard to whether the non-payment is the result of the COVID-19 epidemic. The Executive Orders also suspend the imposition of late fees and prohibit law enforcement from serving or enforcing evictions of any kind. Landlords are also prohibited from issuing ‘no-cause’ or ‘landlord-cause’ termination notices or evictions: the former happens during the first year of tenancy or with owner occupied two-unit lots (typically duplexes or ‘mother-in-law’ units); the latter occur when a landlord wants to move in or move a family member into the rental, a buyer wants to live in the rental, the rental needs major renovation work, or the rental is being converted to ‘non-rental’ purposes. Unable to remove their tenants, rental property sellers are unable to deliver possession of the property for an indeterminate amount of time, causing many real estate transactions to fail.

Chief Justice Orders: Under Chief Justice Walters’ current orders, all stages of eviction proceedings are automatically postponed until after May 31st, with the caveat that evictions involving domestic violence, most situations giving rise to a 24-hour termination notice, and similar ‘high need’ eviction cases may proceed by seeking leave of court, following a process to be developed by each court (though trying to set and advance these cases may be difficult and/or follow uncertain timelines). Residential and commercial evictions may still be filed – though evictions for non-payment or ‘no cause’ or ‘landlord-cause’ evictions are prohibited (violation is now a Class “C” Misdemeanor), and such ‘non-compliant’ evictions may be accepted or rejected at filing, depending on local court practice. When an eviction is filed, the first appearance setting and service of summons and complaint will all occur according to statute, only the FED summons and complaint will be accompanied by a multi-language notice advising the parties the first appearance date is automatically postponed to a later date and will be followed by a future court notice informing them of the new hearing date (notice below. Evictions that do proceed or that later proceed are expected to utilize the court’s newly-developed rules for court appearances, including efiling documents and exhibits and remote appearances by parties, witnesses and lawyers where possible.

Federal Action: While federal law does not directly prohibit all evictions, portions of the CARES Act require all landlords with federally-backed mortgages, including those covered by HUD, USDA, FHA, VA, Fannie Mae and Freddie Mac, to forgo evicting their tenants by placing a 60-day moratorium (beginning March 18th), and providing those landlords with various forms of relief, including a 180-day loan forbearance (which can be extended another 180 days at the borrower’s request). The Act allows multifamily housing owners with a federally-backed mortgage to request a forbearance for up to 30 days (which can be extended another 60 days at the borrower’s request), on the condition that they agree not to evict tenants or charge late fees. The Act also institutes a moratorium on filings for evictions for renters in homes covered by a federally-backed mortgage for 120 days of enactment. The Act provides a temporary moratorium on evictions for most residents of federally subsidized apartments, including those supported by HUD, USDA or Treasury (Low Income Housing Tax Credit developments).

Local Ordinance: Multnomah County, Portland, Clackamas County, Gresham and Hillsboro have each imposed their own form of moratorium on evictions, and residential and commercial property owners would be wise to seek current information specific to their jurisdiction before proceeding.

Oregon Legislature: In short, the Oregon legislature has yet to take any action regarding the pandemic.

What is a residential or commercial landlord to do? With access to the courts effectively prohibited, at this point for months, many have asked what they should do considering the constant barrage of bad news. First, opening lines of communications and making payment arrangements and/or accepting partial payments from your tenants is likely a good option, and in some cases, may be the only payment you receive. Next, keep in mind that the COVID-19 state moratorium does not apply to conduct-based notices or evictions. If you have truly troublesome or dangerous tenants, your remedies are still intact – just delayed for now in many situations.  Finally, remember that the moratorium creates a payment deferral, not a payment forgiveness. Governor Brown’s executive order was explicitly clear that all amounts owed – except late fees – remain due and owing.

In this writer’s opinion – Neither tenants nor property owners should have to stand alone bearing the social or economic burden of the COVID-19 Pandemic. Perhaps the ‘best’ economically- and socially-rational way for the federal and state governments to preserve housing stability for families impacted by the COVID-19 crisis and struggling to cover housing expenses is by creating emergency rental assistance programs through a drastic short-term expansion of the Rental Assistance Vouchers program or similar programs. This should be the first and highest priority with regard to the allocation of funds provided to Oregon through the Federal CARES Act – immediately infusing cash for rent payments into the hands of renters and landlords. The eviction moratorium can also be better tailored to safeguard owners’ ability to effectively affect repairs and manage their communities, while allowing more types of housing providers access to mortgage forbearance, ensuring fairness and flexibility in its terms, and by providing financial assistance for property-level financial obligations such as property taxes, utilities or insurance payments and by extending credit to multifamily mortgage servicers, small landlords and multifamily businesses using the Small Business Administration’s Paycheck Protection Program.

We are in this together, and together we are stronger.

Be Well,
Brian Cox

This information is current as of April 15th, 2020. Time and answers are changing rapidly, and all readers are encouraged to seek the most current and reliable information available.

* * *Court notice accompanying FED Summons * * *

NOTICE TO LANDLORDS FILING FED (EVICTION) CASES

On April 1, 2020, Governor Kate Brown issued Executive Order 20-13 which, among other things, prohibits the filing of certain eviction cases. The Executive Order was effective immediately and remains in effect for 90 days unless extended or terminated earlier by the Governor.

• A violation of Executive Order 20-13 could subject you to criminal penalties including a Class C Misdemeanor punishable by a fine of up to $1,250.00 and up to 30 days in jail.

• If you file your complaint, your filing fee will not be refunded, even if it is subject to the Executive Order.

• You should review the full Executive Order to determine if it applies to the complaint you are filing. Available at: https://www.oregon.gov/gov/admin/pages/eo_20-13.aspx.

• If you have questions, you may want to contact an attorney.

The following are excerpts from Governor Brown’s Executive Order 20-13:

“1. Residential Tenancies.

a. During this moratorium, landlords of residential properties in Oregon shall not, for reason of nonpayment as defined in paragraph 1(b) of this Executive Order, terminate any tenant’s rental agreement; take any action, judicial or otherwise, relating to residential evictions pursuant to or arising under ORS 105.105 through 105.168, including, without limitation, filing, serving, delivering or acting on any notice, order or writ of termination or the equivalent; or otherwise interfere in any way with such tenant’s right to possession of the tenant’s dwelling unit.

b. The term “nonpayment” as used in paragraph 1 of this Executive Order means any nonpayment of rent, late charges, utility charges, or any other service charge or fee, as described in ORS 90.392(2)(a) or (c), 90.394, or 90.630(1)(d) or (10), or any termination without cause under ORS 90.427. All other terms used in paragraph 1 of this Executive Order shall have the same meanings as set forth in ORS chapters 90 or 105.

c. Nothing in paragraph 1 of this Executive Order relieves a residential tenant’s obligation to pay rent, utility charges, or any other service charges or fees, except for late charges or other penalties arising from nonpayment which are specifically waived by and during this moratorium. Additionally, paragraph 1 of this Executive Order does not apply to the termination of residential rental agreements for causes other than nonpayment.

d. * * *

2. Non-Residential Tenancies.

a. During this moratorium, landlords of non-residential properties in Oregon shall not, for reason of nonpayment as defined in paragraph 2(b) of this Executive Order, terminate any tenant’s lease; take any action, judicial or otherwise, relating to non-residential evictions pursuant to or arising under ORS 105.105 through 105.168, including, without limitation, filing, serving, delivering or acting on any notice, order or writ of termination or the equivalent; or otherwise interfere with such tenant’s right to possession of the leased premises.

b. The term “nonpayment” as used in paragraph 2 of this Executive Order means nonpayment of rent, late charges, utility charges, or any other service charge or fee, as described in the lease or in ORS 91.090, 91.210 or 91.220. All other terms used in paragraph 2 of this Executive Order shall have the same meanings as set forth in ORS chapters 91 or 105.

c. Paragraph 2 of this Executive Order shall apply if a tenant provides the landlord, within 30 calendar days of unpaid rent being due, with documentation or other evidence that nonpayment is caused by, in whole or in part, directly or indirectly, the COVID-19 pandemic. Acceptable documentation or other evidence includes, without limitation, proof of loss of income due to any governmental restrictions imposed to mitigate the spread of COVID-19.

d. * * *

~ ~ ~ ~ ~

Governor Brown’s most recent executive order effective April 1st, expands the moratorium on residential and non-residential evictions for non-payment of rent. The previous executive order only prohibited law enforcement from serving or doing anything to enforce a FED judgment for non-payment. We originally thought that the Governor’s executive order would include a requirement for tenants to provide objective verification that their loss of income or inability to pay rent was directly tied to Covid-19, but unfortunately, that is not the case.

This new order extends to the landlords themselves, prohibiting landlords from terminating residential and non-residential rental agreements for non-payment (read that “giving a termination notice for non-payment”), filing evictions, doing a commercial ‘self-help’ lock-out, or taking any further steps to terminate or dispossess a residential or commercial tenancy or otherwise proceed in an eviction for non-payment. Be aware that Governor Brown’s executive order also creates a penalty - a landlord violating the emergency order could be found guilty of a Class C misdemeanor, punishable by up to 30 days in jail, a fine of up to $1250, or both. Again, this restriction and penalty applies to only non-payment situations. Landlords with federally-backed financing should also be wary of losing their qualification for a loan payment deferral that occurs if the landlord evicts tenants during the Coronavirus emergency.

Governor Brown’s revised order expressly confirms that tenants still owe all of their contractual obligations, excepting post-order late fees (which are now waived). Landlords serving other types of termination notices are allowed to issue those notices and file those evictions (at least for now), just be aware that all first appearances will be reset to a date after June 1st for all evictions except those based on 24-hour notices or domestic violence. Evictions based on 24-hour notices or involving domestic violence will be allowed to proceed on a limited basis, subject to procedures to be developed by each Circuit court for expediting and hearing those cases. Landlords with federally-backed financing should be wary of losing their qualification for payment deferral that occurs if the landlord evicts tenants during the Coronavirus emergency.

Dear ORHA members,

There is an emergency committee that has been formed to address the impacts of Covid-19 on the rental housing industry. They are receiving comments until 5 p.m. Monday, March 23^rd. We are urging you to send your comments to the committee at jscvr.exhibits@oregonlegislature.gov no later than Monday. This is our opportunity to influence the discussion about solutions that will benefit tenants and us, the people who house them.

Below you will find the letter sent by ORHA leadership regarding our concerns. There may be other concerns we have not addressed or thought of, please feel free to mirror our concerns or combine them with your own, in a respectful, constructive way.

Sincerely,
The ORHA Board of Directors

To our valued members around the state,

We have reached a moment in the Covid-19 crisis, where your voices need to be heard regarding the plans for keeping people housed. To that end, we have created a list of talking points that you can use when providing encouragement to your local, county and state officials as they grapple with this unprecedented situation. We support direct rent assistance payments to landlords for the following reasons:

•        Disaster relief needs to be for both tenants and landlords to ensure that renters retain their housing and landlords can continue to operate. Direct payments to landlords will keep the supply chain functioning, including mortgages, insurance, maintenance, etc. This isn’t just about making sure that landlords get their money. Housing stability for our communities should be front and center during this crisis.
•        A moratorium on mortgage payments provides some relief, but it doesn’t provide income. Some landlords depend on their tenants’ rent payments for their main source of income for food, medicine and utilities; we don’t want to create a new category of people who need help.
•        Rental properties require maintenance. If landlords don’t have the money to pay for needed maintenance due to the crisis, they may face punitive damage awards for failure to maintain the unit.
•        As our government officials pour money into the economy to mitigate the short- and long-term impacts of this crisis, part of what needs to happen is for people to keep buying goods and services to lubricate the economy and minimize the damage we are facing. Direct payments to landlords for the tenants who need help will be a vital way to infuse funds in to the local economies.
•       Not all tenants need help. While many have been temporarily suspended from working, many are working from home, or have resources available to help them weather the storm. There needs to be some sort of needs test to determine whether the inability to pay rent is related to Covid-19 or not. Tenants should have to provide some sort of documentation from their employer that there is no work available, and that unemployment benefits for the household do not meet their needs for food, shelter and utilities. Gathering this data could also provide much needed information to the state regarding impacted communities. This could help inform future planning for unexpected crises that will undoubtedly come our way.
•       Other pressing issues for some landlords are current pending notices for bad behavior by tenants, or termination notices issued prior to this time. Can these evictions still be processed and executed, or do landlords have to sit tight while the tenant continues to damage the property, disturb the quiet enjoyment of the neighbors, and even commit criminal acts while being protected from eviction? Also, under current law, once a notice of termination has expired, if the landlord accepts rent for any period beyond the termination date, they waive their right to terminate on that notice. With the implementation of SB 608 and the subsequent restrictions on termination of tenancy after the first year, a landlord could get into a real bind. Can waiver rules be temporarily suspended due to this crisis allowing landlords to accept rent, but still keep their notice valid?

These and other issues will deeply impact housing providers throughout the state and our nation, leading to possibly devastating impacts to rental owners and the people we house. We urge you to consider the unintended consequences of your decisions now and in the coming days and find a middle ground that takes these concerns into account.

Sincerely,

Sage Coleman, ORHA President

Jim Straub, ORHA Legislative Director

ORHA Board of Directors

The crisis set in motion by the spread of the Covid-19 virus is causing ripple effects throughout our communities. In many cases, we will all experience a significant reduction in income due to cancelled events, closed schools and facilities as we attempt to thwart the spread.

While the government is taking various forms of action to reduce the impact on citizens and the economy in general, such as waiving the waiting week for employees to file for unemployment, tenant advocates are pleading for understanding from landlords during this uncertain time.

If you are a landlord and have renters whose livelihoods are significantly impacted, and you are financially able to defer rent and waive late fees for a period of time, we are offering a Landlord and Tenant Deferment Agreement free on the Oregon Rental Housing Association website:  https://oregonrentalhousing.com/.

Using this method, you won’t be creating waiver regarding the Application of Tenant Payments – ORS 90.220 that requires landlords to apply any money received from the tenant to past month’s rent owing, then current month’s rent owing, etc. Many thanks to Eugene attorney Brian Cox for his generosity in creating this form for our use.

The crisis has already set in motion delays on eviction proceedings for at least a few weeks. Depending on how long this crisis goes on, the government may take further action. If we as a group can show that we’re being proactive and doing our best to help during this challenging time, the sense of urgency may wane, especially if the extreme measures being taken have the desired impact of slowing or stopping the spread of the virus so our lives can get back to our new normal.

It is our sincere hope that legislators understand that while some landlords have reserves, and can muddle through without rent from their tenants for a time, many private landlords are in the same boat as their tenants – working full time paycheck-to-paycheck, and out of work because of the virus.

Mass evictions help no one, and other ideas are being floated throughout the state and our nation to find solutions for this very temporary problem. Please do what you can, and we’ll do our best to keep you updated as the situation develops.

Sincerely,

Sage Coleman, ORHA President

Jim Straub, ORHA Legislative Director

ORHA Board of Directors

To download this Memo or the Form, Click the links below:

Memo - A Call to Oregon Landlords

By Tia Politi, Oregon Rental Housing Association Secretary
February 19, 2020

Landlord-Tenant law governs a lot between the relationship between rental owners and their customers, but how many know that there are state and federal laws that pose legal requirements on their conduct with tenants? In a nutshell, here’s the dos and don’ts:

Landlords shall:

1. Act reasonably
2. Act in good faith
3. Mitigate damages

Landlords shall not:

1. Discriminate
2. Retaliate
3. Evict without Due Process (Constructive Eviction)
4. Contract with Unconscionability

Let’s look at each of these concepts and how they impact housing providers.

Reasonableness
To act reasonably within the landlord/tenant relationship is often referred to as the reasonable person standard.

Wikipedia defines this as, “…the omission to do something which a reasonable person, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do…A reasonable person does not insist on always holding to the letter of the law, nor are they unduly strict, stern, or harsh. Rather, they strive to be gentle in their dealings with others, taking into consideration their circumstances. They are willing to listen to others and, when appropriate, to yield to their wishes and adjust their requirements…The care taken by a prudent person has always been the rule laid down.”

That’s a great definition. What would an uninvolved reasonably intelligent third party think of your words or actions? Do your words and actions fit the definition, or not? Sometimes people can get so entrenched in whatever their position is on a particular subject that they lose the ability to see the full picture and their behavior contributes to an escalation of a problem. I used to tell my children, it doesn’t matter what anyone else does, you are still required to behave properly and mind your manners.

There is no excuse in the adult world (or in a court of law) that will excuse your improper words or actions even if someone else’s behavior is abusive or out of control. You can’t get out of a speeding ticket by telling the officer that you were just keeping up with the speeder ahead of you, and the same is true for how landlords deal with residents. Objectivity can be a challenge for all of us and that’s probably why many faiths emphasize trying to see things from the other person’s point of view. Landlords who struggle with anger or extreme emotions in their daily lives should hire a property manager.

Good Faith
Good faith is the concept of honesty, truthfulness and trustworthiness, and is defined in ORS 90.100 (20) as, “…honesty in fact in the conduct of the transaction concerned.” Furthermore, ORS 90.130 imposes the obligation of good faith by landlords, “Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.”

What does good faith look like? It looks like telling the truth, and not lying by omission in regards to something that can impact a resident. It creates a presumption that landlords will deal with tenants honestly and fairly, so as not to impact their rights to receive the benefits of a contract. It imposes the obligation to be fair, open and honest – regardless of the outcome. Anything a landlord does that could be considered misleading, dishonest or that takes advantage of a tenant’s lack of knowledge of their rights could be construed as acting in bad faith. Does that mean landlords have to educate tenants on their rights? No, but… taking advantage of, or benefitting from another’s ignorance isn’t really acting in good faith is it?

Discrimination
Discrimination means treating people who belong to a protected class differently than people who do not. Protected classes are:

• Federal – Race, Color, National Origin, Religion, Sex, Familial Status (families with children), and Disability;

• State of Oregon – Marital Status, Source of Income (including housing subsidies), Sexual Orientation, and Gender Identity.

• Some cities in Oregon have additional protected classes. Eugene, for example, has added protections for Type of Occupation, Ethnicity and Domestic Partnership.

• Active duty military and victims of domestic violence have protections under the law that can impact a landlord’s ability to refuse to rent a property, terminate a tenancy, or charge lease-break fees to a protected resident.

What actions by a landlord constitute discrimination? Denying an application, applying stricter screening criteria, misrepresenting available units, or requiring higher deposits based on a person’s membership in a protected class is discriminatory behavior. So is failing to take action against a resident in a multifamily complex who is targeting or persecuting another based on their membership in a protected class. It’s also against the law to terminate the tenancy of a victim of domestic violence, sexual assault or stalking, refuse to allow assistance animals for disabled residents, or refuse to rent to a single parent, among other examples.

Most landlords are pretty savvy about avoiding these kinds of actions, but many seemingly innocent decisions can be considered discriminatory when they result in creating disparate impacts on protected classes of residents. For private landlords that most often happens in the areas of advertising, screening and the use of house rules. Take care to scrupulously follow Fair Housing law in your rental business.

When advertising, avoid trouble by describing the property, not the kind of people you think should live there. When showing, it’s best practice to provide an application to anyone who indicates an interest in renting the property. And while you can certainly refuse to accept an incomplete application or set of applications, best not to refuse to accept a completed application to avoid any appearance of discrimination, regardless of whether or not you think the person will qualify. Everything you need to know about the applicant will be discovered during the screening process.

In the use of house rules, discrimination occurs when it has a disparate impact on residents in protected classes. This is the creation of artificial, arbitrary and unnecessary policies that erect barriers or have a discriminatory impact on members of protected classes, regardless of how they are applied. A well-meaning landlords’ policies may be “facially neutral,” in that they are applied equally to all, but it’s the disparity in outcomes and their impact on a specific protected class that creates the problem. HUD language prohibits policies that, “…predictably creates, increases, reinforces, or perpetuates segregated housing patterns of race, color, religion, sex, handicap, familial status, or national origin.” That doesn’t mean landlords can’t make rules, only that those rules must serve a substantial, legitimate, nondiscriminatory interest and that there is no other practice that would have a less discriminatory impact.

The concept of discrimination also applies to how a landlord imposes rules or occupancy limits. ORS 90.262 requires that when implementing rules on a tenancy, that the rules be fair, reasonable and non-discriminatory, and not be implemented so as to evade a landlord’s obligations. For occupancy standards, this statute provides that occupancy shall not be more restrictive than two per bedroom without good reason.

Retaliation
Retaliation is defined by landlord-tenant law as increasing rent, decreasing services, serving a notice of termination, or bringing or threatening to bring an action for possession after the tenant has done one or more of the following:

• Complained to, or expressed to the landlord in writing the intent to complain to a governmental agency charged with oversight for building, health or safety codes; mail delivery laws and regulations; or discrimination in rental housing.

• The tenant has made a complaint to the landlord that is related to the tenancy;
• Formed or joined a tenants' union;
• Testified against the landlord in any judicial, administrative or legislative proceeding;
• Successfully defended an FED (eviction) action brought by the landlord when the notice served by the landlord was defective or imperfect, or the timing of the notice was miscalculated; or

• Indicative of their intent to assert or invoke the protection of any right secured to tenants under any federal, state or local law.

There are exceptions to the use of the retaliation defense by a tenant in a courtroom:

• The complaints by the tenant were unreasonable in their timing or manner;
• The violation of housing codes were caused by the tenant;
• The tenant has defaulted on rent (unless they deposit full rent into court); or,
• Compliance with building codes requires the tenant to vacate.

Mitigation
ORS 90.125 specifies that either party to the rental transaction may recover monetary damages against the other as a remedy for action or inaction that results in a legitimate loss, but that the aggrieved party has the duty to mitigate those damages. Mitigation in law is the principle that a party who has suffered loss has to take reasonable action to minimize the amount of the loss suffered.

If a tenant signs a fixed-term lease for one year, but moves out and stops paying rent after a few months, the landlord may be able to sue for breach of contract, but the landlord must mitigate the tenant’s damages by making a reasonable attempt to find a replacement tenant.

If a water pipe breaks in the unit, the tenant has the duty to do their best to prevent damage by whatever action necessary, such as turning off the water either in the unit or at the street, notifying the landlord or agency immediately, and mopping up the water to the best of their ability to prevent further damage.

Each party owes mitigation duties to the other.

Constructive Eviction
Constructive eviction is defined by landlord/tenant law as unlawful ouster or exclusion, or willful diminution of services.

1. Unlawful ouster means that landlords may not just lock tenants out when they don't pay rent or violate one or more terms of their rental agreement, but must proceed within the guidelines of the law. Landlords are prohibited from even attempting or threatening to unlawfully remove a tenant from the premises.
2. Willful diminution of services means willfully interrupting heat, running water, hot water, electric or other essential service, and allows punitive damages for attempting or threatening to interrupt essential services. If a tenant moves in without transferring utilities to their name the landlord must serve legal notice to the tenant to transfer and pay or move out, not just stop the services.

Let that sink in. Yes, even attempting or threatening to violate a tenant’s rights as listed above can result in punitive damages, even if you never actually do it.

Unconscionability
Unconscionability is a doctrine in law that describes terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power, that they are contrary to good conscience. According to ORS 90.140, “If the court finds that a rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result.”

Unconscionability is determined by a number of factors, including power imbalance, age, mental capacity, or intoxication that make a contract unenforceable because no reasonable person would otherwise agree. As a defense, the contract has to have been unconscionable at the time it was made, and is determined only by a judge.

The takeaway Minding your business means minding your manners when dealing within the parameters of Landlord-Tenant law. There is never anything to be gained by escalating bad situations with a tenant, but a whole lot to lose. So, deal fairly, document scrupulously, and keep your emotions under control!

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.

About the Author: 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.