Answer. The Multnomah County Moratorium does not declare a “rent-holiday” or anything close. Rent is still due and payable. The only exception is that if there is a timely request for partial payments, and the tenant has an objectively verifiable proof of loss of cash-flow related to COVID, you and the tenant are encouraged to enter into an agreement for partial payments for a period of time. Keep in mind that the state courts are not hearing FED evictions for nonpayment of rent, so your options are limited. Reaching a repayment program ahead of time is better that not getting any rent money and not being able to do anything about it.
MHCO has issued a recently developed two forms for members to use when entering into a partial rent payment program. See, Nos. 13A (Multnomah County) and 13B (Rest of Oregon).
Question.Regarding Form 13-A (Mult. Co.), what if the resident decides they cannot pay anything? Is that acceptable? Is that what I put in the agreement?
Answer. The Multnomah Count Moratorium does not declare that rent is forgiven, or is not otherwise due on time. It merely imposes a hold on eviction proceedings where the nonpayment results from a verifiable and documented loss of income due to COVID-19.
In order to qualify, the resident needs to demonstrate a “substantial loss of income”, through documentation or other objectively verifiable means, resulting from the COVID-19 Pandemic. Note, this includes loss of income related to County, State, and Federal restrictions imposed to mitigate the spread of COVID-19.
So what is your resident providing to establish the substantial loss of income? Presumably, if the resident is no longer employed, he/she can no longer pay the rent. If so, documentation or other information must be provided to establish this. If that is not the case, i.e. if there is no job loss, or it’s not related to COVID, or there is not a substantial loss of income, etc. they don’t qualify.
Keep in mind that if both residents are working and one loses their job for COVID-related reasons, this, of itself, does not automatically qualify them for partial rent payments. If the remaining resident is still working and generating income, you will want to explore how much rent can still be paid. Paying nothing should not be an option where the household is still generating some income, and the resident can pay a portion of the rent, but chooses not to.
Remember, whatever is deferred will have to be repaid within 6 months after the Governor’s Declaration of Emergency expires, so if the tenant is just trying to get out of paying anyrent, there is no real advantage to entering into the agreement today if it results in six months of rent abate, only to have to file an eviction the. The bottom line is that before you enter into the partial rent agreement, you should thoroughly vet the resident’s COVID-related issues and ability to pay at least something. However, as noted above, no Oregon courts are hearing nonpayment of rent evictions, so you alternatives are limited.
Question. Regarding having to demonstrate they have substantial loss of income due to the virus, can we:
- Ask to see their final pay stub and current bank statement so we can help figure out what they can pay us?
- Can we ask for a letter from their employer stating that they were laid off? How are they supposed to prove they can't pay in full?
Answer. Good questions. the Declaration of Emergency is not specific, except only to say that the proof has to be “through documentation or other objectively verifiable means.”
Here are the elements of proof as I see them:
- Is it COVID-related?
- Is there a substantialloss of income?
- Does it prevent the resident from paying some or all of the space rent?
What you decide to accept as “evidence” is between you and the resident. But other than requiring that he/she provide sensitive, confidential, personally identifiable information (e.g. social security number) I submit that pay stubs, account information is OK, so long as the protected information is redacted, i.e. blacked out. An employer statement is probably unnecessary in most cases, as there would likely be some form of written or emailed announcement.
Question. The Multnomah County Order says near the bottom that for landlords of communities within Multnomah County they should inform their tenants about the Moratorium. How should I do that?
Answer.I believe reliable information is your best approach so residents trust you as a source. MHCO has distributed material on the Multnomah County Moratorium, and developed two forms which are self-explanatory and follow the law.
You want residents to know what the law is ahead of time. It is important to convey that the law does not “forgive” any deferred rent; there is no “rent holiday”; and any rent abatement must be supported by verifiable documentation or information showing a substantial loss of cash flow. Without such information, a tenant does not technically qualify for partial payments.
Unless a tenant has lost their entire source of income, e.g. job loss and is unable to qualify for unemployment, most situations would seem to result in a possible wage reduction, rather than a total loss of income.
Question.Does the Moratorium apply to utilities?
Answer. As for utilities, here is the rule: (a) Residents are still required to pay those utilities and other charges and fees if they pay them directly to third-party providers, e.g. electricity, cable, garbage, etc. (b) But utilities and other charges and fees payable to the landlordare defined in Forms 13-A and 13-B as “rent” that may be deferred (but not forgiven).
Question. If residents do not get hold of me by the 1stof the month, are we still under the obligation to enter into these agreements?
Answer. Only the Multnomah County form, 13-A requires the request to be made before the first of the month, since that is what the ordinance says. We developed Form 13-B (for areas outside of Multnomah County/City of Portland) and followed generally, Form 13-A. We did so because we believed it was a good approach. However, the Oregon Legislature has not developed a comparable law for areas outside Multnomah County/City of Portland – although we expect one shortly.
Accordingly, there are some differences between the two forms, one of which is that Form 13-B does not expressly require that the request must be made before the first of the month.
Nevertheless, assuming your community is inside the Portland/Multnomah County area, and rent has not yet been paid, say for April, and the resident requests to make partial payments, I suggest that a certain amount of latitude is important during these tough times. In other words, if the resident is a legitimate candidate for partial payments, you should consider having them sign Form 13-A.
Question. Do we fill out either Form 13A or 13B each month?
Answer. No. Form 13-A (Portland/Multnomah County) lasts for the duration of the Moratorium because that is what the law says; Form 13B last for the duration of the “Concession Period” which is the amount of time both landlord and resident agree rent shall be abated.
However, directly above the resident’s signature in both forms, the following provisoappears in bold print:
By signing below, Resident certifies that the documentation or other objectively verifiable information supporting a substantial wage loss is true and correct to the best of his/her knowledge. In the event that through other income or employment, Resident’s wage loss is reduced or eliminated, Landlord will be promptly notified, and this Agreement shall either be terminated or modified accordingly.
Question. I've had my first call regarding nonpayment of rent. The daughter called me to say her mother had been laid off. She said the Governor said they have six months to pay rent. I cautioned her that we needed some proof of wage loss, and if so, the parents would need to enter into an agreement for partial payments. She said we can't evict them. I said not now, but eventually if rent isn't paid an eviction would occur.
I don't think this conversation went very well. A script of what we should be asking for or saying would help - even just bullet points so I know I am doing it correctly?
Answer. We cannot develop a script for many reasons, the first of which all circumstances can vary. However, I believe the following information distills exactly what landlords and residents can and cannot do: - but you should not treat tenant requests with a one-size-fits-all approach.
- The Multnomah County Moratorium does not declare a “rent-holiday”;
- Rent is still due and payable.
- Deferred rent is not forgiven;
- The only exception to payment of full rent is a timely request for partial payments, in which case the tenant must establish with reasonable evidence:
- An objectively verifiable proof of substantial loss of cash-flow;
- It must be related to COVID;
- MHCO has recently developed two forms for members to use when entering into a partial rent payment program. See, Nos. 13A (Multnomah County) and 13B (Rest of Oregon);
- Deferred rent must be repaid with 6-months after the Moratorium ceases in Form No. 13A (Multnomah County) and an agreed-upon period of time in No. 13B (Rest of Oregon);
- Oregon courts are not hearing FED evictions for nonpayment of rent for the time being – we don’t know how long that will last;
- If the resident engages in some activity that endangers the health, safety and welfare of the residents, management, or visitors/guests, you should check with your county court to see if a proceeding would be timely heard if you filed for eviction.
- For utilities: (a) Residents are still required to pay those utilities and other charges and fees if they pay them directly to third-party providers, e.g. electricity, cable, garbage, etc. (b) But utilities and other charges and fees payable to the landlordare defined in Forms 13-A and 13-B as “rent” that may be deferred (but not forgiven).
- The above rules are fluid, and we do not yet know what the Oregon Legislature might do. Once that occurs, we anticipate having to make adjustments in the current rules upon which the above information is based.
