Phil Querin Q&A - Has the law changed on denying applicants on convictions?

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April 13, 2015
Phil Querin
MHCO Attorney
Querin Law

Question.   My manager said he heard somewhere that by law a conviction older than three or four years cannot be used as a part of the decision to deny a prospective tenant’s rental application.  I don’t know if that pertains to screening in a rental situation or if it was related to something else, such as employment or the like. Can you shed some light on this? 

Answer.  RS 90.680(6)(b) provides as follows:

 

The landlord may not unreasonably reject a prospective purchaser as a tenant. Reasonable cause for rejection includes, but is not limited to, failure of the prospective purchaser to meet the landlords conditions for approval as provided in ORS 90.510 (Statement of policy) (5)(i) or failure of the prospective purchasers references to respond to the landlords timely request for verification within the time allowed for acceptance or rejection under paragraph (a) of this subsection. Except as provided in paragraph (c) of this subsection, the landlord shall furnish to the seller and purchaser a written statement of the reasons for the rejection.

 

What this means is that the only prohibition is against unreasonable rejections.  That, of course, is in the eye of the beholder.  But whatever criteria you have, it must be applied consistently to all prospective applicants. 

 

However, note that besides situations in which the prospective tenant fails to timely respond, the source of relevant screening criteria is to come from your Statement of Policy. So check that to see what criteria you have.

 

Similarly, Oregon law requires that you must inform your current resident in the rental agreement as to what criteria you will use, so check that, as well. In other words, you cannot make up screening criteria on the fly.

 

The MHCO rental and lease agreements have a number of criteria set out, and as long as you confine yourself to them you should be in good shape.  You will note that they are general in nature, and do not set limits on the age or type of criminal convictions.

 

In checking with John VanLandingham, he reminds me that ORS 90.303 currently provides that a “landlord cannot consider arrests (unless the charge is still pending), but can consider convictions if the conviction relates to conduct relevant to being a tenant, which includes most everything. In consulting with screening companies, we were told that most don’t report crimes older than 5 or 7 years.”

 

There is a move afoot to apply limitations on criminal records in hiring. See the discussion on the Internet relating to “Ban the Box,” here

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