Phil Querin Q&A - Landlord's Right to Convert Garbage Costs to Pass-Through Program

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August 10, 2015
Phil Querin
Attorney
Querin Law

Question. Our city garbage company is going to increase my per space rate by six dollars per month per can, which is a drastic increase. I'm wondering if I have the legal right to back out of my base rent the current garbage costs, and then require our residents to pay directly. Our current rental agreements include the garbage in base rent, which means currently I will have to absorb the cost of the increase for everyone.  Any suggestions?
 

Answer. ORS 90.531 – 90.543 consists of a series of statutes that permit landlords to convert utility charges from base rent to a program passing them on directly to residents. ORS 90.533 expressly permits garbage collection costs to be converted to a pass-through program.  In summary, it provides as follows:

  1. Unilateral Amendment.  You must first unilaterally amend your rental or lease agreements to remove the cost of garbage collection from your base rent and have it billed to residents by your garbage provider. You do not need tenant consent to make this amendment.

 

  1. 180-Day Notice.  You must give not less than 180 days’ written notice to each resident, before converting to a garbage pass-through billing program.

 

  1. Reduction of Rent. You are required to reduce your base rent at the time of the first billing under the new program. The rent reduction may not be less than an amount reasonably comparable to the amount of the rent previously allocated to the garbage services averaged over at least the preceding twelve (12) months. Landlords may not convert to this program sooner than one year after giving notice of a rent increase, unless the rent increase is an automatic increase provided for in a fixed term rental agreement (i.e. a lease) entered into one year or more before the conversion. 

 

  1. Twelve Months’ Garbage Billing Records. Before you may first bill the residents under the new program, you must provide them with written documentation from the garbage provider showing your cost for the service during at least the twelve (12) preceding months.

 

  1. Prohibition on Subsequent Rent Raises. During the six months following your conversion to a garbage pass-through billing program, you may not raise the rent to recover any costs of conversion to the program.

 

  1. Common Areas. At the same time you convert to the pass-through program, you may also unilaterally convert the billing for common areas to a pro rata method that divides the cost based on the number of occupied spaces in the facility. Don’t forget to address this in the unilateral amendment!
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