Phil Querin Q&A: Fees Against Tenants Who Violate the Rules

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June 3, 2014

Question: I understand that the Oregon statutes now permit landlords to levy fines against tenants who violate the rules. Where is the statute and what does it say?

Answer: The statute you are referring to is 90.302, and it provides the following: • A landlord may charge a tenant a fee for each occurrence of the following: o A late rent payment; o A dishonored check; o Removal or tampering with a properly functioning smoke alarm,smoke detector or carbon monoxide alarm; o The violation of a written pet agreement or of a rule relating to pets in a facility; o The abandonment or relinquishment of a dwelling unit during a fixed term tenancy without cause; • A landlord may charge a tenant a fee for a second noncompliance or for a subsequent noncompliance with written rules or policies that describe the prohibited conduct and the fee for a second noncompliance, and for any third or subsequent noncompliance, that occurs within one year after a written warning notice. o The fee may not exceed $50 for the second noncompliance within one year after the warning notice for the same or a similar noncompliance or o $50 plus five percent of the rent payment for the current rental period for a third or subsequent noncompliance within one year after the warning notice for the same or a similar noncompliance. • The landlord must: o Give the tenant a written warning notice that describes:  A specific noncompliance before charging a fee for a second or subsequent noncompliance for the same or similar conduct; and  The amount of the fee for a second noncompliance, and for any subsequent noncompliance, that occurs within one year after the warning notice. Give a tenant a written notice describing the noncompliance when assessing a fee for a second or subsequent noncompliance that occurs within one year after the warning notice. Give a warning notice for a noncompliance or assess a fee for a second or subsequent noncompliance within 30 days after the act constituting noncompliance. • The landlord may terminate a tenancy for a noncompliance instead of assessing a fee, but may not assess a fee and terminate a tenancy for the same noncompliance. • The landlord may not deduct a fee from a rent payment for the current or a subsequent rental period. • The landlord may charge a tenant a fee for occurrences of noncompliance with written rules or policies as provided above for the following types of noncompliance: o The late payment to futility or service charge that the tenant owes the landlord; o The failure to clean up pet waste from the space; o The failure to clean up garbage,rubbish and other waste from the space; o For parking violations; o For the improper use of vehicles within the premises; o For smoking in a clearly designated nonsmoking area within the community other than the home; 1 o For keeping an unauthorized pet capable of causing damage to persons or property. • The landlord is not be required to account for or return to any fees to the tenant. • Other than for early termination of a fixed term lease (discussed above) a landlord may not charge a tenant any form of liquidated damages, however designated. • Nonpayment of a fee is not grounds for termination of a rental agreement for nonpayment of rent (i.e. under ORS 90.394), but is grounds for a 30-day notice of termination for cause under 90.630 (1). • This law does not apply to: o Attorneyfeesawarded; o Applicant screening charges; o Charges for improvements or other actions that are requested by the tenant and are not required under the rental agreement or by law, including the cost to replace a key lost by a tenant; o Processing fees charged to the landlord by a credit card company and passed through to the tenant for the use of a credit card by the tenant to make a payment when:  The credit card company allows processing fees to be passed through to the credit card holder; and  The landlord allows the tenant to pay in cash or by check; or  A requirement by a landlord in a written rental agreement that a tenant obtain and maintain renter’s liability insurance. • NOTE: The fees must be described in a written rental agreement. o Since ORS90.100(38)defines“rental agreement”to mean“…all agreements,written or oral, and valid rules and regulations, it would seem that including the fines in the rules would suffice. 2