Answer: This was covered in a December 2016 MHCO Article. The major change in the law since then was due to the elimination of 72-hour notices of nonpayment of rent. Now a 10-day notice must be issued. (MHCO does not have a form for 144-hour notices, but it too has been eliminated. It has been replaced by a 13-day notice.) For partial payments, MHCO members do have access to "MHCO Form 12: Receipt and Agreement for Partial Payment of Rent" available on-line at MHCO.ORG.
Withour a legal agreement to make specific and timely installment payments, tenants are required to tender to the landlord the full amount of rent owed under the rental or lease agreement no later than the date provided. Without a proper written agreement, the landlord may refuse to accept the tenant’s tender of rent that is for less than the full amount of rent due.[1]
If landlord is willing to accept partial payments, doing so must strictly follow ORS 90.417. If so, the acceptance of a partial payment will not constitute a waiver under ORS 90.412 (Waiver of termination of tenancy) or the landlord’s right to terminate the tenancy for nonpayment of the balance of the rent owed. Notwithstanding any acceptance of a partial payment of rent, the tenant continues to owe the landlord the unpaid balance of the rent.
However, the agreement must be in writing. It must specify the amount and date of the required payments. If the tenant fails to pay the balance due as agreed, landlord may issue a 10-day notice of termination under ORS 90.394 (Termination of tenancy for failure to pay rent). The written agreement should provide that the landlord may terminate the rental agreement and take possession under the eviction statutes (ORS 105.105 to 105.168) without serving a new 10-day notice under ORS 90.394 if the tenant fails to pay the balance of the rent by the agreed-upon time.
However, there are two important rules against giving the landlord rights under the written agreement that are more favorable than already permitted under the law. Specifically:
- It cannot permit the landlord to issue a termination under ORS 90.394 any sooner than would have been permitted had no rent been accepted; and
- The notice of termination must permit the tenant to cure it by paying the balance within the time period already allowed under ORS 90.394 (or by any date to which the parties agree, whichever is later.
Note that if the landlord already accepted a partial payment of rent after giving a nonpayment of rent termination notice under ORS 90.394, and then entered into a written agreement for installment payments, doing so will not constitute a waiver.
As always, before entering into a written agreement, landlords should consult with their legal counsel should they have any ques
[1] Similarly, the landlord is not legally required to accept the tender of a late payment even if it is for the correct amount. However, if the rules or rental agreement provide for a late payment fee, I do not believe the landlord should refuse a late payment tender within the late-fee period. Can the landlord insist on payment of the fee with the tender of the late payment? My concern about doing so is the argument that the “fee” is not “rent.” I would not recommend refusing to accept any late payment unless there was a collateral issue involved, such as waiver – in which legal counsel should be consulted. If rent is tendered after issuance of the 10-day notice but before an eviction is filed, I would still advise my client to accept it. My belief is that once the court learns that rent has been tendered, albeit late, the judge would not likely grant an eviction. My belief is that the “3-strikes” rule under ORS 90.630(10) should suffice for habitual late payers. In all other case, granting some latitude (with collection of a late fee under the rental agreement of rules) should suffice in most cases. Some attorneys may disagree. Legal counsel should always be consulted if there are any questions.
