Phil Querin Article: Waiver Under Oregon’s Landlord-Tenant Act

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January 9, 2017
Phil Querin
MHCO Legal Counsel

 

Waiver of Termination of Tenancy. A landlord waives the right to terminate a rental agreement for a particular violation of the rental agreement or of law if the landlord:

  • During three or more separate rental periods, accepts rent with knowledge of the violation by the tenant; or
  • Accepts performance by a tenant that varies from the terms of the rental agreement.
  • A landlord has not accepted rent for purposes of subsection (2) of this section if:
    •  Within 10 days after receipt of the rent payment, the landlord refunds the rent; or
    •  The rent payment is made in the form of a check that is dishonored.

 

 

 

 

  • The landlord accepts:
    • A last month’s rent deposit collected at the beginning of the tenancy, regardless of whether the deposit covers a period beyond a termination date;
    • Rent distributed pursuant to a court order releasing money paid into court; or
    • Rent paid for a rent obligation not yet due and paid more than one rental period in advance.
  • For a continuous or ongoing violation, the landlord’s written warning notice remains effective for 12 months and may be renewed with a new warning notice before the end of the 12 months.
  • For a violation concerning the tenant’s failure to pay money owed to the landlord, the landlord’s written warning notice under subsection ORS 90.412(4)(c) remains effective for 12 months from the date of the tenant’s failure to pay the money owed.
  • A landlord that must refund rent shall make the refund to the tenant or other payer by personal delivery or first class mail. The refund may be in the form of the tenant’s or other payer’s check or in any other form of check or money.

 

Acts not constituting waiver of termination of tenancy.  If a notice of termination has been given by the landlord or the tenant, the following acts do not waive the landlord’s right to terminate on the notice and do not reinstate the tenancy:

  • Except in the case of issuance of a nonpayment of rent notice under ORS 90.394, the acceptance of rent if:
    • The rent is prorated to the termination date specified in the notice; or
    • The landlord refunds at least the unused balance of the rent prorated for the period beyond the termination date within 10 days after receiving the rent payment.
  •  Except in the case of termination for cause under  ORS 90.392 (termination for cause), 90.398 (termination for drug/alcohol violations), 90.405 (unpermitted pets), 90.630 (termination of MHP tenancy by landlord) or 90.632 (termination for physical condition of home in MHP), the acceptance of rent for a rental period that extends beyond the termination date set forth in the notice, if the landlord refunds at least the unused balance of the rent for the period beyond the termination date within 10 days after the end of the remedy or correction period described in the applicable notice.
  • If the termination is for cause under ORS 90.392 (termination for cause), 90.398 (termination for drug/alcohol violations), 90.405 (unpermitted pets), 90.630 (termination of MHP tenancy by landlord) or 90.632 (termination for physical condition of home in MHP) and eviction proceedings have commenced to recover possession of the premises based on the termination:
    • The acceptance of rent for a period beyond the expiration of the notice of termination during which the tenant remains in possession if:
      • The landlord notifies the tenant in writing in (or after the service of) the notice of termination for cause that the acceptance of rent while an action for possession is pending will not waive the right to terminate under the notice; and
      •  The rent does not cover a period that extends beyond the date the rent payment is accepted.
    • Service of a nonpayment of rent termination notice under ORS 90.394.
  • The following acts do not waive the right of the landlord to terminate on a notice of termination given by the landlord or the tenant and do not reinstate a tenancy:
    •  Acceptance of a last month’s rent deposit collected at the beginning of the tenancy, whether or not the deposit covers a period beyond a termination date.
    • Acceptance of rent distributed under a court order releasing money that was paid into the court as provided under ORS 90.370 (1) (Rent tender provisions when tenant files a counterclaim)
    • Acceptance of rent paid for a rent obligation not yet due and paid more than one rental period in advance.
  • When a landlord must refund rent, it shall be made to the tenant or other payer by personal delivery or first class mail and may be in the form of the tenant’s or other payer’s check or in any other form of check or money.

 

Effect of acceptance of partial rent. A tenant’s duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the terms of the rental agreement. A landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely.

  • A landlord may accept a partial payment of rent.
    • The acceptance of a partial payment does not constitute a waiver of the landlord’s right to terminate the tenancy under ORS 90.394 (Termination of Rental Agreement for Failure to pay Rent) of the balance of the rent owed if the following rules below for partial payments are followed.
  • A landlord and tenant may by written agreement provide that monthly rent shall be paid in regular installments of less than a month pursuant to a schedule specified in the agreement. Such agreed-upon installment rent payments are not “partial payment of rent”
  • Acceptance of a partial payment of rent waives the right of the landlord to terminate the tenant’s rental agreement for nonpayment of rent unless:
    • The landlord accepted the partial payment of rent before the landlord gave a nonpayment of rent termination notice based on the tenant’s agreement to pay the balance by a time certain and the tenant does not pay the balance of the rent as agreed;
    • The landlord’s notice of termination is served no earlier than it would have been permitted under ORS 90.394 (Termination of Rental Agreement for Failure to pay Rent) had no rent been accepted; and
    • The notice permits the tenant to avoid termination of the tenancy for nonpayment of rent by paying the balance within 72 hours (or 144 hours) or by any date to which the parties agreed, whichever is later; or
    • The landlord accepted a partial payment of rent after giving a nonpayment of rent termination notice and entered into a written agreement with the tenant that the acceptance does not constitute waiver. This agreement may provide that the landlord may terminate the rental agreement and thereafter file for eviction without serving a new non-payment of rent notice if the tenant fails to pay the balance of the rent by a time certain.
  • Application of a tenant’s security deposit or prepaid rent to an obligation owed to a landlord in foreclosure under ORS 90.367 does not constitute a partial payment of rent.
  • Notwithstanding any acceptance of a partial payment of rent pursuant to the above rules, the tenant continues to owe the landlord the unpaid balance of the rent.
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