ORHA News

  • Friday, October 08, 2021 11:21 PM | Maria Menguita (Administrator)

    By: Tia Politi, ORHA President
    October 7, 2021

    I’m sad to report the passing of J. Norton Cabell, one of the most influential landlords in Oregon. Many of you may have known him during the years he served variously as President, Treasurer and Legislative Director for the Oregon Rental Housing Association (ORHA), Vice President of Lane ROA, Director of the Fair Housing Council of Oregon, Citizen Review Board Member for the Oregon Judicial Department as well as Sponsors, Inc., to name a few. More recently, he chaired the Intergovernmental Eugene Housing Policy Board and Renter’s Protection Committee. I came on the boards of Lane ROA and ORHA after Norton’s time, but he was always available to graciously answer my questions and provide expert guidance. He is the originator of the ORHA Law Book and Forms Manual.

    “To whom much is given, much is expected.” Norton exemplified this saying. Born into privilege, he received a top-notch education, earning his bachelor’s degree in economics from the University of the South and his M.B.A., from the University of Virginia. He spent a couple of decades in the banking industry, before leaving that career for a life in the wonderland of Oregon.

    As a landlord in Oregon, Norton rented to those who few others would have. Violet Wilson of ORHA and the Salem Rental Housing Association remembers, “I first met Norton Cabell in 1990 when I took my very first law update class. He was very knowledgeable and presented the information in an entertaining way. He peppered his talks with actual stories from his professional life. He often rented to the less fortunate population, such as former convicts. One story, in particular, still comes to mind. A man who panhandled on the streets for change and used it to pay his rent. Norton accepted daily payments from him in those small increments. I learned from him the many laws we had to follow to be a good property manager but I was also inspired by him to remember that tenants are human and we have to operate in humane and thoughtful ways.”

    Jim Straub remembers, “Norton was instrumental in my sharp learning curve regard all things Chapter 90 during the 1990’s, as he was countless others. I always felt Norton brought an inquisitive and balanced view of legislative changes. He was highly respected by both landlord and tenant advocates. We have truly lost a giant in the industry.”

    John VanLandingham of the Oregon Law Center was especially close to Norton and recalls, that, “We both grew up in Virginia, which is a very distinct world. Oregon is a breath of fresh air in comparison. Norton’s family name is well known there – there is a Cabell Hall at the University of Virginia. A Cabell fought and died with the Virginia Military Institute cadets who fought at the Battle of New Market in the Civil War, the only college group to fight in a war. He attended a prestigious Virginia prep school – and got expelled for conducting an unauthorized chemistry experiment that blew up the lab.

    “At the beginning of his post-college life, Norton spent 20 years as a banker in New Hampshire, working his way up, before he decided he’d had enough and moved to Oregon. He sometimes described himself as a recovering banker.

    “He was a wonderful writer, clear and concise, and he liked writing. He wrote legislative guides on landlord/tenant law and columns in the ROA newsletter and summaries of the law. They were always excellent. He and I did all of the writing for the old General Landlord/Tenant Coalition’s bills over many years. And he wrote and published a novel (which you can buy online). We used to discuss the novel, and his revisions. It involves a recovering banker who becomes an investigative financial analyst called in over a shady real estate deal in New Hampshire. And there’s sex!

    “Norton and I spent about 15 years as the primary negotiators – he for landlords/ORHA and I for tenants – in the General L/T Coalition. Those were the glory years for the coalition. We worked collaboratively and productively, amending Oregon law in many significant ways. Norton never had as a goal screwing tenants; the goal was to address a problem for landlords or tenants and work to find a reasonable solution that would not harm the other side. I can’t tell you the number of times I tell tenant lawyers in other states who have a legal problem that in Oregon we addressed that issue by statute.

    “And Norton and I would usually carpool to and from those monthly coalition meetings, which were usually held in Salem. We couldn’t get too mad at each other since we would have to ride back to Eugene together. Norton knew the law backwards and forwards, and he was pragmatic, not getting emotionally involved with a case. Deborah Imse, the Executive Director of MultiFamily NW, said to me earlier this week, when I told her about Norton’s passing, that she was “just heart-broken; Norton was instrumental in my sharp learning curve regarding all things Chapter 90.”

    “Norton also cared deeply about affordable housing. After he stopped being ORHA’s legislative leader, he got even more involved in affordable housing issues in Eugene and Lane County, chairing the Intergovernmental Housing Policy Board for years. He became very influential with local elected officials for his knowledge and his level-headedness. He chaired and led other public policy groups over the years, too, such as the Eugene Community Development Block Grant Advisory Committee, the Rental Housing Code Committee, the Police Review Board, and more. Because he was a long-time landlord and knew their concerns, he spoke with unequaled authority. Norton was my friend. I’ll miss him more than I can think. But his death is an even bigger loss for landlords and tenants in our community.”

    Norton’s last years were spent living in one of his multi-unit properties, right alongside his residents, and that’s where his memorial service was held, with family, friends, local dignitaries and residents in attendance. He could have lived in a fancy house far away, but chose to be not just a landlord, but also a neighbor…

  • Wednesday, October 06, 2021 5:26 PM | Maria Menguita (Administrator)

    By: Violet Wilson, Education Committee Chair
    October 3, 2021

    Due to changes to the Oregon Rental Housing Association office staff, I have taken on the following:

    a. Retained copies of the ORHA power point presentations and distribute as requested. Some of the presentations will need to be updated due to recent law changes. A description of each class will be included on the ORHA website as well as available materials.

    b. Retaining copies of instructor qualifications forms, W9’s, and CE credits given out.

    c. Outlined objectives for each class: in progress.

    d. Instructor’s qualifications need to be completed on an OREA form and kept on file for 3 years. This will be added to document storage for ORHA.

    Other updates:

    a. We have contracted with Peter Bale, a former Agency Investigator, to update the Law and Rule Required Course which includes the new required fair housing language. It will be ready for January classes.

    b. Option: Live video class to a local where the members meet in person is in the works.

    c. Continuing to look at selling our power point presentations to non-members.

    d. The committee would like to know who schedules classes at a local level and get information to them.

    Current available classes

    a. ORHA

    1. Housing Provider 101 (2hr.)
    2. Housing Provider 102 (2 hr.)
    3. Law Update, Part 1 (2 hr.)
    4. Law Update, Part 2 (2 hr.)
    5. Law Update, Part 1 (1 hr.)
    6. Law Update, Part 2 (1 hr.)
    7. Law Update, Part 3 (1 hr.)
    8. Legislative Update: Revised 7/21
    9. Law Update, 3 hrs.
    10. Temporary Occupant, 1 hr.
    11. Odds and Ends of Property Management
    12. Acts of God and other Disasters
    13. Property Management Policies

    b. Other classes available by request.

    Membership in a Box, updated by Ben Seamans, is available for local ROA chapters to review the needs of their associations. It has interactive links to important information needed.

  • Wednesday, October 06, 2021 4:45 PM | Maria Menguita (Administrator)

    By: Jason Miller, ORHA Legislative Director
    October 4, 2021

    Several members have asked us this question since the maximum rent increase for 2022 was announced in September. The max rent increase for renters in properties where the certificate of occupancy was issued more than 15 years ago is 7% plus the previous 12 month average, September to August, Consumer Price Index (CPI) for the West Region.

    Although currently the CPI high around 5%, from September 2020 to February 2021 it was below 2% with a low of 1.4%. This brings the average for the year down to 2.9%. The 2022 maximum allowed rent increase will be 9.9%. If the certificate of occupancy for the property was issued in the last 15 years there is no cap on rent increases.

    While some who have properties that are way under market may be disappointed that the 2.9% CPI average is less than current numbers, most Housing Providers will be able to adjust their rents to accommodate rising costs and taxes within the 9.9% maximum increase.

    Caps on rent increases and other regulation has been tough on the housing industry. Oregon needs more legislators who understand that putting more regulations on small family owned businesses only hurts Oregonians. More than ever the Oregon Rental Housing Key Political Action Committee (ORH KEY PAC) needs your donations. Funds go to legislators who value and support our industry. Donate today!!!

  • Thursday, September 16, 2021 2:21 PM | Anonymous

    ATTENTION!!!

    THE ALLOWABLE STATEWIDE
    RENT INCREASE FOR 2022 IS: 9.9%

    On September 15, the State of Oregon's Office of Economic Analysis debuted the maximum rent increase rate for 2022 to be 9.9%. SB 608 set the maximum rent increase formula to be 7% plus the West Coast Consumer Price Index, which changes every year. For 2021 the maximum increase was 9.2%.

    Once SB 608 passed in February of 2019 ushering in the first in the nation statewide rent control, it mandated that the state of Oregon create a web page and update it yearly by the end of September, to display the annual maximum rent increase allowed in Oregon.  The Oregon Rent Stabilization website is:

    https://www.oregon.gov/das/OEA/Pages/Rent-stabilization.aspx

    Rent increases going into effect for Oregon residents in 2022 must not be more than 9.9% as set forth in the Oregon Residential Landlord Tenant Act related to rent control. This applies statewide, including in the City of Portland. If a rental housing provider happens to increase the rent above maximum amount allowed, SB 608 specifies a penalty of 3 months’ rent, actual damages sustained by the tenant, and potential attorney fees and legal costs.

    Please remember that there are limited exemptions to the rent cap for affordable housing providers and for new construction. Housing providers should not increase rent more than 9.9% without consulting with their attorneys about exemptions and how to implement.

    This informational notice is not intended as legal advice. Please call your local Association Helpline if you have questions or contact an attorney for any policy change or decisions regarding residential and commercial Landlord-Tenant matters.


  • Monday, September 06, 2021 9:33 PM | Maria Menguita (Administrator)

    By: Tia Politi, Forms Committee Chair
    September 6, 2021

    There have been some substantial impacts to some of our forms, 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; Past-Due Rent Reminder – ORHA form 14; and Notice of Termination with Cause – ORHA form 38 (just in case you’re using this form to collect money from the tenant). These forms have had language added to comply with statute. That language reads as follows, “Eviction for nonpayment of rent, charges and fees that accrued between April 1, 2020 and June 30, 2021 is not allowed before February 28, 2022.”

    If you want to continue to use notices that do not have this language, that’s fine as long as you write in that required statement. It is required to be included on any notice of termination for nonpayment and any reminder notices regarding protected debt (debt incurred during the Emergency Period). This change lasts through February 28, 2022.

    I’m excited to announce that our new rental agreements are available on the Forms Store and also in print version. You will notice substantial changes not only in the look of the forms, but also in the text in response to your suggestions. Many thanks to committee member, Jason Brush of Klamath Falls, who spent many hours working with me on the agreements to create “boilerplate” language that won’t need to be frequently updated. He brought a great perspective to our team that was much needed.

    We are also now selling our long-awaited Week-to-Week tenancy forms. With the advent of increasing restrictions on housing providers, the week-to-week option provides a lot more flexibility and control over tenancies and skirts a lot of the restrictions imposed both by statute and by COVID-19 restrictions. Our week-to-week forms include a rental agreement, rent increase notice, termination for no-cause and termination for cause. While week-to-week agreements do have some benefits, they also have some special limitations with no ability to charge a security deposit or any fees at all. This, however, does not mean that residents won’t be liable for damage. We think this will be a great option for providers who wish to rent short-term or rent rooms in their own home. For now, these are only available on the Forms Store site. If we get enough interest, we may be able to print small batches.

    As we work through the rest of the updates to our forms, and creation of some new forms, we will continue to roll those out on the Forms Store just as soon as they are available and let you know when updated forms can be printed and ordered.

    With no office space or employee, I’ve moved the physical forms to my office in Eugene and am handling forms orders for now. But another upcoming change will be to have a centralized printer who will receive and send out our orders. We anticipate that change will be implemented within the next month or two. This will eliminate the constant problem of overordering and purging outdated stock, which has plagued ORHA for years! We are forever losing money on forms, but with the new system, orders will be printed and filled as needed, eliminating the problem of keeping or purging inventory as forms change.

  • Wednesday, September 01, 2021 9:43 PM | Maria Menguita (Administrator)

    By: Tia Politi, ORHA President
    September 1, 2021


    ORHA has undergone significant changes over the past couple of months. We have lost our employee Virginia Delco and due to the uncertainty in the job market as well as our plan to outsource forms printing and shipping, the board decided a few things. First, I and the Executive Team have been given emergency powers until the September meeting in order to keep the association up and running. Secondly, if the COVID pandemic has taught us anything, it’s that in many cases, people can work from home, so the board also decided that we don’t need a physical office space any more. Cloud Miller, Dennis Chappa, Jill Maricich and I finished dealing with scanning, purging old docs, hauling paper forms to my office in Eugene, removing office cabinets and furniture, returning equipment and canceling our lease. Keys were turned in on August 31, 2021. At some point we may decide to hire an employee or Executive Director, but we should be able to find someone who can work from home.

    We also decided to cancel our phone service. Folks can always reach us by email – office@oregonrentalhousing.com. With no employee, no office rent to pay, and no phone or internet payments, no monthly fees for the copier and UPS, we will be saving a substantial amount of money. Different board members are taking on the tasks that were part of Virginia’s duties, and being paid to do so in line with our reimbursement policy.

    Thank you to everyone who is stepping up to fill in for the following duties:

    • Bookkeeping – Jill and Dennis are hard at work taking care of updating the books and searching for a bookkeeper to handle bill paying. Once we hire a bookkeeper, all reimbursements will flow through them for payment. The finance team of Jill, Dennis, Sibylle and Chuck DeSeranno are developing a reimbursement process, Cloud is developing the reimbursement form. This will result in some differences to the way things have been handled in the past. We will update you on the new policy and send out the form as soon as we have the process nailed down.
    • Email inquiries and eblasts to the state – Cloud and Tia
    • Forms orders – Tia
    • Forms store queries – Cloud and Tia
    • Mail pickup and forwarding – Violet and Kathleen are regularly checking the post office box as they both live in Keizer, and we will be keeping our mailing address the same for the foreseeable future – PO Box 20862, Keizer, OR  97307.
    • Meeting arrangements & board packs – Tia and the Executive Team
    • Newsletter – Maria Menguita
    • Quarterly ethics filings – Jason Miller
    • Wild Apricot updates and revenue sharing – Jill and her staff are performing this task at this time. The revenue sharing will likely be handed to the bookkeeper at some point. Membership fees and updates can continue to be sent to the PO Box, but in the near future, we will be implementing changes to that procedure, and will notify everyone once a new process is created.

    Many thanks to everyone who helped in this fast and furious transition, including Dennis Chappa, Jill Maricich, Jason Miller, Violet Wilson, and especially Cloud Miller. One of the most challenging aspects of Virginia’s abrupt departure was gaining access to our accounts. In many cases, the passwords she had written down were not current and the ones we were sent by her friend were also not accurate. Cloud spent countless hours finding work-arounds, and was able to work some special magic juju to get into her desktop computer to retrieve essential info to cancel or update accounts. Cloud and his dad drove out to Keizer from Ontario and spent three days with us taking care of essential business. I cringe to imagine where we would be without him.

    This crisis has shined a bright light on how important it is to have our passwords safe and protected, but available to essential personnel. At this time, Cloud and I have developed a list of those passwords and they have also been shared with vice president Ben Seamans for safekeeping. Cloud is working on setting up a program called M-Secure where our essential data will be held. Access to that program will be limited to the Technology Chair (Cloud), ORHA President (me), and ORHA VP (Ben), and as those positions transition, will be passed on to the new officers. Once a bookkeeper is identified, we are considering utilizing either them or our tax professional to also hold the password to that file just in case the president, vice president and technology chair happen to get hit by a bus at the same time.

    It’s been an exhausting couple of months for us, but I really believe these changes are going to propel our organization to a new level of efficiency and cost savings while continuing to meet the needs of our local associations.

    If you have any questions or concerns about these changes, please reach out to me or another member of the Executive Team (Ben Seamans, Jill Maricich, Cloud Miller, Dennis Chappa, Jason Miller or Violet Wilson). We will be providing an update at the September Board Meeting in Redmond this September. Hope to see you there!

  • Wednesday, September 01, 2021 9:38 PM | Maria Menguita (Administrator)

    By: Tia Politi, ORHA President
    September 1,2021

    Hello ORHA members,

    I am equal parts excited and terrified to be your new ORHA President!

    I would like to honor our outgoing President, Sage Coleman, who despite challenges in his personal life, continued the work started by Past-President and current Legislative Director, Jason Miller, to make our group more efficient and cohesive by dragging us into the 21st Century in regards to our use of technology. The Google platform is allowing our committee and team members to collaborate more effectively in many ways. Sage’s term hit during the pandemic and required extraordinary efforts in regards to leadership and legislation. He was an effective voice for ORHA during some crucial conversations and media events and represented us well. A shout out of appreciation to Vice President Ben Seamans, who stepped up ably to fill in for Sage when he was unable to be present. We have a dedicated, dynamic and cohesive board that comes together when needed to support each other when our personal lives conflict with our volunteer lives.

    During the past year or so, we have discovered the efficiencies (and cost savings) that can be created through virtual meetings, but we also feel that in-person meetings provide a creative (and fun) dynamic that helps us connect in a way that virtual meetings can’t. Therefore, the board has decided to hold two of our six bi-monthly meetings each year remotely for the months of November and January. Since travel is more difficult during the fall and winter months, it made sense to stay home then.

    A little bit about me: I have been a housing provider since 2003, and a licensed property manager since 2009. I am also President of the Rental Owners Association of Lane County, Secretary for ORHA Education, Inc., and I head up the ORHA Forms Committee. I serve as a volunteer instructor for St. Vincent de Paul’s Second Chance Renter’s Rehab Program, and teach classes in rental management throughout the state, including a class teaching high school seniors the basics of renting a home. I own and operate Rental Housing Support Services, LLC, providing consultation, landlord-tenant training, mediation, notice prep and service, eviction support, and telephone helpline services to housing providers in Oregon. Married 34 years to Kevin, two grown children, two dogs. Love power walking, gardening, playing cards and board games, and working.

    Besides myself, our other new and continuing officers are Ben Seamans, (serving his first official two-year term as Vice President after stepping in to the position several months ago), Jill Maricich who will serve another term as Treasurer, and Parker Vernon, who has agreed to be our acting Secretary until we can vote him in at the next meeting. The Executive Committee also consists of At-Large Member and ORHA Technology Chair, Cloud Miller, representing SE Oregon, as well as Legislative Director Jason Miller, and longtime ORHA board members and EC advisors, Dennis Chappa, and Violet Wilson, and Maria Menguita, ORHA Social Media Committee Chair. Sage Coleman will continue to serve on the committee, fulfilling the role of Past President.

    We are blessed with a fantastic and growing group of leaders in the state organization as well as our local associations, and are excited to see younger members stepping up to lead at the state and local level. The future for ORHA is brighter than ever and I look forward to collaborating with all of you to ensure that our group continues to improve on the work of our past leaders and volunteers, maintaining ORHA’s stature as the voice of landlords throughout the state. Please feel free to reach out to me with ideas, suggestions, compliments or complaints: orhapres@gmail.com.

    Warm regards,
    Tia Politi, ORHA President

  • Wednesday, September 01, 2021 9:22 PM | Maria Menguita (Administrator)

    By: Tia Politi, ORHA President
    September 1, 2021

    I staff five landlord helplines around the state and invariably most calls, especially now, are about terminating tenancy. The process is always fraught with peril, but even more so now, during a pandemic. The challenges are many. First you must select the correct notice, then you must prepare the notice just right, calculate your timing with precision, and finally, serve the notice perfectly. If the resident does not perform according to the direction in the notice, your notice will become the basis for a court action, and the resident can defend against your notice in court. If the termination is for-cause, in most cases you must provide an adequate cure period and you must be able to prove that the violation(s) occurred. The civil standard of proof is by a preponderance of the evidence.

    The Rules of Evidence are found in ORS Chapter 40, and basically, include written documentation, contemporaneous notes, photos, videos, texts or emails, and witness testimony. If your termination is contested, you must prove that your allegations are true – more likely than not. Always look at your situation with a critical eye and ask yourself: What would a judge think? Does your evidence prove your case? Did you act in good faith? Were you reasonable? Is your notice perfect in every way? If the answer to any of these questions is “maybe” you best rethink your strategy. Since the passage of Senate Bill 608 in February of 2019, termination rules have changed dramatically. Pile on pandemic restrictions, and you’d better be even more careful.

    The easiest slam-dunk win for a tenant in eviction court is to prove “the notice is wrong.” That can include problems with your selection and preparation of the notice itself – called a defective notice – or by serving the notice incorrectly – called imperfect service, so proper service is essential. There are three ways and ONLY three ways that you can deliver legal notice to terminate tenancy under statute. The methods of service and the calculation of time for notice periods are found in ORS 90.150, 90.155 and 90.160. It’s a small section of statute, but it often causes the most problems for the unwary landlord. My comments in each section of statute are bold and italicized.

    SERVICE OR DELIVERY OF NOTICES
    90.150 Service or delivery of actual notice. When this chapter requires actual notice, service or delivery of that notice shall be executed by one or more of the following methods:

    (1) Verbal notice that is given personally to the landlord or tenant or left on the landlord’s or tenant’s telephone answering device. Actual notice is allowed by landlords only for notice of entry (unless serving by mail only per section (3) below) for notice of termination of tenancy.

    (2) Written notice that is personally delivered to the landlord or tenant, left at the landlord’s rental office, sent by facsimile to the landlord’s residence or rental office or to the tenant’s dwelling unit, or attached in a secure manner to the main entrance of the landlord’s residence or tenant’s dwelling unit. Remember, this is actual notice, and cannot be used to terminate tenancy by the landlord, but can be used to terminate tenancy by the tenant.

    (3) Written notice that is delivered by first class mail to the landlord or tenant. If the notice is mailed, the notice shall be considered served three days after the date the notice was mailed. This type of actual notice is allowed to terminate tenancy by either party.

    (4) Any other method reasonably calculated to achieve actual receipt of notice, as agreed to and described in a written rental agreement. [1995 c.559 §3; 1997 c.577 §5; 1999 c.603 §9; 2003 c.14 §33] This section is what allows landlords and tenants to agree to email or text notice, for example, for notice to enter or maintenance requests, but NEVER for termination of tenancy or rent increases either.

    90.155 Service or delivery of written notice. (1) Except as provided in ORS 90.300, 90.315, 90.425 and 90.675, where this chapter requires written notice, service or delivery of that written notice shall be executed by one or more of the following methods:

    (a) Personal delivery to the landlord or tenant; This method is fraught with peril. I’ve had callers claim to have served notice personally, but when I dig deeper and ask, “Did you hand the notice to the tenant, or drop it at their feet if they refused to take it from your hand? Did you serve each named party?” I often get a no in response. One lady told me she personally served notice by posting it on the door. That’s not personal service. Personal service means I make eye contact with you and PERSONALLY hand you the notice or drop it at your feet.

    There was a case out of Portland where a manager went to a unit to serve notice on a tenant. The tenant’s 9-year-old son opened the door, the manager made eye contact with dad (the tenant) who was lying on the couch and told the man he had a notice to serve him. The dad told his son to shut the door and then the manager slid the notice under the door. The action went to court and the landlord won the case as the manager had made eye contact with dad (who was the sole tenant) and told him he had a notice to serve him. Unless you have no other means of serving notice, most attorneys do not recommend this type of service. The most common errors with personal service are not serving the notice personally or not serving each named party.

    (b) First class mail to the landlord or tenant; This is the way and usually the only way attorneys serve notice and is by far the most secure legally. Just mail a copy of the notice to the tenant(s) and All Others to their mailing address. If their mailing address is different than the physical address of the property, mail the notice there. Because mail does get lost, it’s a good idea to perform a courtesy service of notice by email, text or by posting a courtesy copy of the notice on the door of the unit. I think we can all assume that most folks who go to law school and pass the bar are smarter than most of us (at least about the law), so I’m going to do what the smart people do and so should you.

    Does your resident have an alternate mailing address? It’s important to ask the question at the outset of the tenancy, and our rental agreements require them to disclose that to you, but I had tenants in one of my rentals who did not tell me and I forgot to ask, but they did put their PO Box return address on their envelope every time they paid rent. I made note of that and had no problems, but I could foresee a possibility that a judge could rule in favor of a tenant who made a practice of that, claiming that you should have noticed or asked about it.

    Another obstacle to mailed-only notices can be the lack of a mail receptacle. I once tried to serve a notice for a client, who had failed to provide a mail box or slot at the rental property and he had not gotten any alternate mailing address for them. By the time he came to me, the relationship between them had soured and they would not answer the door or return any of his calls or emails. So, how was he supposed to get them served? I went and attempted to personally serve them, but 15 minutes of sustained knocking failed to garner any response. He was forced to put the property under surveillance and wait for them to come out. After many hours, he was able to accomplish personal service, but what a pain. Make sure there’s a mail box or mail slot at the property or get an alternate mailing address before you hand over keys.

    (c) If a written rental agreement so provides, both first class mail and attachment to a designated location. In order for a written rental agreement to provide for mail and attachment service of written notices from the landlord to the tenant, the agreement must also provide for such service of written notices from the tenant to the landlord. Mail and attachment service of written notices shall be executed as follows: Most landlords like to serve notice by post-and-mail because they don’t have to add three days for mailing, but this method is also fraught with peril…

    (A) For written notices from the landlord to the tenant, the first-class mail notice copy shall be addressed to the tenant at the premises and the second notice copy shall be attached in a secure manner to the main entrance to that portion of the premises of which the tenant has possession; and What does it mean to attach a copy “in a secure manner”? Can it be argued that your notice wasn’t securely affixed? Yep. Did you post it on the “main entrance”? What is the main entrance? What if the tenant uses the back door as their main entrance? This method of service can be a challenge as many the unwary landlord has discovered once they’re in court facing a tenant attorney. The next section of the law showcases another reason why…

    (B) For written notices from the tenant to the landlord, the first class mail notice copy shall be addressed to the landlord at an address as designated in the written rental agreement and the second notice copy shall be attached in a secure manner to the landlord’s designated location, which shall be described with particularity in the written rental agreement, reasonably located in relation to the tenant and available at all hours. Pay attention to this part of statute. Because reciprocity is integral to the right to post-and-mail notices, landlords have to have everything just right in the written rental agreement. First, you must designate a reciprocal, physical location in the written rental agreement. Second, that location must be “described with particularity,” so not just an address, but a particular location at that address where the tenant may reciprocate and post and mail notices back to you.

    Third, that location must be reasonably located in relation to the tenant and available at all hours.

    So, what does “reasonably located” mean? I think it means that wherever that location is, it can’t be too far away from the tenant’s location. I don’t think there’s a specific definition and it may largely depend on the tenant, their capacity and their transportation options. Another thing to consider is whether or not there are barriers to access to your reciprocal location. Can the tenant actually get there? Are their stairs, and your tenant is physically limited? I once had a renter who lived close to my office, but she was morbidly obese and struggled to get up the few short steps to our office door. Because of this fact, I would never serve notice to her by post-and-mail because even though we met the criteria otherwise, reciprocity was a challenge for her.

    In another matter, I once had a rental owner come to me wanting to evict their residents for non-payment of rent. The right to post-and-mail their notices was listed in the written rental agreement for posting notice on their front door, the address provided by the owner was located a reasonable distance from the dwelling unit, and the residents had appropriate transportation, were able-bodied and physically capable of providing reciprocal service to their landlord at that location. Believing all the criteria were met, the notice was served by post-and-mail, the residents failed to tender rent and the case ended up in court.

    The residents requested a trial and the owner began to prepare. Looking at their case with a critical eye, we were discussing any possible weak spots. During the discussion, the landlord mentioned a gate at the property. What?!! A gate? Oh, yeah, they had forgotten to mention the very important fact that a locked gate prevented access to the main entrance of their stated physical address. The case ended up being settled without a trial, but this one tiny detail could have resulted in a spectacular loss for them even though the residents clearly owed the money specified in the notice, the notice was otherwise perfect, and they acknowledged receiving it.

    (2) If a notice is served by mail, the minimum period for compliance or termination of tenancy, as appropriate, shall be extended by three days, and the notice shall include the extension in the period provided. This is another area where landlords mess up – they count their days wrong. We’ll address that in Calculation of Notice Periods.

    (3) A landlord or tenant may utilize alternative methods of notifying the other so long as the alternative method is in addition to one of the service methods described in subsection (1) of this section. Yes, you can serve notice by certified or registered mail, or even carrier pigeon if you have one, but only if it’s IN ADDITION to one of the legal methods of service.

    (4) After 30 days’ written notice, a landlord may unilaterally amend a rental agreement for a manufactured dwelling or floating home that is subject to ORS 90.505 to 90.850 to provide for service or delivery of written notices by mail and attachment service as provided by subsection (1)(c) of this section. [Formerly 90.910; 1997 c.577 §6; 2001 c.596 §29a; 2015 c.388 §9; 2019 c.625 §50] This statute does not allow for a notice of change in terms for post-and-mail for regular tenancies, only for manufactured dwellings or floating homes that are subject to ORS 90.505 to 90.850. So, if you don’t have the correct info in your rental agreement, it doesn’t appear that you are allowed to change that. But that’s okay, because you should ALWAYS serve notice by First-Class Mail only - if you want to be one of the smart people.

    90.160 Calculation of notice periods. (1) Notwithstanding ORCP 10 and not including the seven-day and four-day waiting periods provided in ORS 90.394, where there are references in this chapter to periods and notices based on a number of days, those days shall be calculated by consecutive calendar days, not including the initial day of service, but including the last day until 11:59 p.m. Where there are references in this chapter to periods or notices based on a number of hours, those hours shall be calculated in consecutive clock hours, beginning immediately upon service. Calculating your time correctly is another challenge of serving notices. Notices served personally are sometimes referred to as “hour notices,” as the clock begins running as soon as the notice is served and expires however many hours later depending on the timeframe for performance or termination as the case may be. Notices served by first-class mail or post-and-mail are sometimes referred to as “day notices,” as the clock does not begin running until 11:59 p.m. on the day of service and expires however many days later depending on the timeframe for performance or termination as the case may be. The day of service is often called a wasted day, or day zero.

    Take note that in 90.155(2) that notice periods are required to be extended by three days when serving notice by first-class mail. What often messes up the timing is when landlords count the day of mailing as day one, so you’ll see on all notices produced by the Oregon Rental Housing Association, that it says to add four days for mailing. We’ve done this as too many private landlords were messing up their calculation of time and counting the day of service by first class mail or post-and-mail as day one. Remember, you can always give more time, you just can’t give less.

    (2) Notwithstanding subsection (1) of this section, for 72-hour or 144-hour nonpayment notices under ORS 90.394 that are served pursuant to ORS 90.155 (1)(c), the time period described in subsection (1) of this section begins at 11:59 p.m. the day the notice is both mailed and attached to the premises. The time period shall end 72 hours or 144 hours, as the case may be, after the time started to run at 11:59 p.m. [Formerly 90.402; 1997 c.577 §7; 2005 c.391 §14; 2013 c.294 §4; 2015 c.388 §1] This section reminds us that calculation of time must be perfect. Again, if you’re unsure about how to count your days, you can always add a day or two to ensure perfection in timing.

    Other timing issues and notification requirements

    Legal Holidays – 187.010
    When your rent due date or notice ‘pay by’ date falls or expires on an ‘official’ holiday, you need to add time to your notice periods.

    • Each time a holiday, other than Sunday, falls on Sunday, the succeeding Monday shall be a legal holiday.
    • Each time a holiday falls on Saturday, the preceding Friday shall be a legal holiday.

    The following days are legal holidays in this state:

    • Each Sunday; New Year’s Day on January 1; Martin Luther King, Jr.’s Birthday on the third Monday in January; Presidents Day, for the purpose of commemorating Presidents Washington and Lincoln, on the third Monday in February; Memorial Day on the last Monday in May; Independence Day on July 4; Labor Day on the first Monday in September; Veterans Day on November 11; Thanksgiving Day on the fourth Thursday in November; Christmas Day on December 25.

    Any act authorized, required or permitted to be performed on a holiday as designated in this section may be performed on the next succeeding business day; and no liability or loss of rights of any kind shall result from such delay.

    The easiest way to remember this rule is that your notice to pay money must expire on a banking day.

    Veterans disclosure required – ORS 90.391
    As of January 1, 2020, all notices of termination, whether for-cause or no-cause, must include a disclosure for veterans regardless of whether or not the tenant is a veteran. Use updated forms, or if you’re using older forms, be sure to write in the required language:

    • If you are a veteran of the armed forces, assistance may be available from a Veterans Services Officer or Community Action Agency. Call the 2-1-1 information service to learn about resources in your area.

    Failure to include this language will result in the notice being materially defective.

    The Takeaway
    Notices to your residents are legal documents and they must meet legal requirements – don’t let your tenant beat you on a technicality. Losing an eviction trial, paying for your tenant’s attorney, and having a judgment against you that’s on your record for 10 years, impacting your credit, has got to be one of the more frustrating and costly experiences for a rental owner. Know the rules and follow them exactly or you may experience a very painful outcome.

    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.

  • Wednesday, September 01, 2021 9:02 PM | Maria Menguita (Administrator)

    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.

  • Thursday, August 05, 2021 6:11 PM | Anonymous

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

    The U.S. Centers for Disease and Control (CDC) issued a new [narrower and targeted] order effective August 3rd, 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

    Brian Cox


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Email: office@OregonRentalHousing.com 

The Oregon Rental Housing Association (ORHA) is a non-profit educational landlord association -- ORHA Board Members, Mentors, Staff, and/or other related ORHA affiliates do not give legal advice. Please be advised that any information provided  is no substitute for professional legal counsel and any advice or guidance given does not constitute legal advice.  Please consult an attorney for legal advice related to your specific situation.

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