Phil Querin Q&A: Obtaining Repayment of Unpaid Late Fees

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Phil Querin

Question: Which form do I use to recover unpaid late fees after issuing a 72-hour notice for non-payment of rent?  Form 43 is for continuing violations. 


Answer. First, as we know, the 72-hour notice for nonpayment of rent does not require payment of the late fee in order to cure the notice. It is sufficient if the tenant only pays the rent within the specified time.  For nonpayment of rent only, you use MCHO Form N0. 42.


For nonpayment of late fees, you have two choices:


  1. 1. Form 43A (Distinct Act or Omission). This arises under ORS 90.630, and gives the tenant 30-days to cure by payment. Nonpayment within the 30-days will entitle you to file for an eviction.


  1. 2. Alternatively, you can ignore the nonpayment as a violation under ORS Chapter 90, treat it as an unpaid debt, and file in Small Claims Court (which generally does not allow attorneys to appear on behalf of the defendant). It’s you versus the tenant.  If the tenant is a serial late-payer of rent, and you’re constantly issuing 72-hour notices, you could accumulate the late fees until they get to a point, say $100 or $200, etc., and then file in Small Claims Court. You would get a judgment and could use it to garnish wages or bank accounts. But don’t let nonpayment of late fees go too long, as there is a one-year statute of limitations for breach of violations under ORS Chapter 90.


Also, remember that if the tenant is a serial late- payer, you can also issue a 3-strikes notice using Form 43D. See, ORS 90.630. This is non-curable, which means that the tenant cannot tender the rent and stay in the community.


Conclusion. It the tenant isn’t a serial non-payer, using the 30-day notice with MHCO Form No. 43A is probably you best bet for quick results.

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