MHCO Columns

Phil Querin Q&A: Tenants Rent Tenders After Eviction Filed

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Phil Querin
Querin Law
MHCO Legal Counsel

Question: Landlord sent a 10-day nonpayment of rent notice to a resident.  The night before filing the FED the landlord called the resident to remind them to pay - hoping to resolve it before filing and paying the filing fee.  Landlord did not hear back from the resident, so he filed the FED and paid the filing fee of $143.00.  Several days later the resident shows up at the park office and offers to pay the rent.  Landlord refused to accept the rent tender since the resident would not also pay the filing fee.  Can the landlord decline the rent tender after filing the FED if the resident refuses to pay the filing fee? What happens in court?

 

Answer: This is a timely and important question. In March 2023 HB 2001 was enacted, which reinstated some of the earlier Pandemic tenant protections including restoring the 10-day and 13- day period in nonpayment of rent notices. It also enacted a new notice that must accompany it.[1]

 

Also, HB 2001 adopted a new expandeddefinition of the term “Nonpayment”:

 

“Nonpayment” means the nonpayment of a payment that is due to a landlord, including apayment of rent, late charges, utility or service charges or any other charge or fee as describedin the rental agreement or ORS 90.140, 90.302, 90.315, 90.392, 90.394, 90.560 to 90.584 or90.630.[2] “Nonpayment” does not include payments owed by a tenant for damages to the premises.

 

Of importance to the above rent-tender question is the following provision in HB 2001:

 

  1. A court shall enter a judgment dismissing a complaint for possession that is based ona termination notice for nonpayment if the court determines that:
    1. The landlord failed to deliver the notice as required under subsection (2) of this section;
    2. The landlord caused the tenant to not tender rent, including as a result of the landlord’s failure to reasonably participate with a rental assistance program; or
    3. The tenant has tendered or caused to be tendered rental assistance or any other payment covering the nonpayment amount owed under the termination notice for nonpayment. (Emphasis added.)

So, to the question of whether the resident must pay the landlord’s filing fee after having to file the eviction the answer is a “Yes.” See, ORS 90.395(5):

 

(5) Notwithstanding ORS 90.302, a landlord may charge a tenant for filing fees paid under ORS 105.130, if the complaint for possession is dismissed under subsection (3)(c) of this section. Payment of the fees is not a prerequisite for dismissal under subsection (3)(c) of this section. [2023 c.13 §55]

 

But this does not mean the landlord should refuse the rent-tender unless it is accompanied by the filing fee.

 

The Take-Away.  It is my opinion[3] that HB 201 results in the following approach for MHP landlords:

 

  1. If rent is not paid after the time prescribed in the Nonpayment of Rent Notice, and before filing the eviction, the landlord should make one last reasonable effort such as a call, visit or email, to see if the resident will pay immediately. It should not include threats or intimidation. If the resident pays, the landlord will have a right to assess late charges if provided in the rental agreement, but should accept the rent even if the late charge is not tendered.

 

  1. If the FED is filed and the tenant pays before going to court, the landlord should accept it even if the landlord’s filing fee is not reimbursed.

 

  1. If the tenant tenders rent at the first appearance in court the landlord should accept it even if the filing fee is not reimbursed.

 

  1. Recovery of the landlords filing fees for the FED, late fees, and other “nonpayments” (as defined above) can be sought by following the default procedures in ORS 90.630. (I cannot forecast what the FED judge might do if the matter goes past the first appearance, but my suspicion is that unless the tenant demands a trial, the court would dismiss if rent paid at the time. Whether a judgment of restitution is issued if rent is not paid at that time is up to the judge; I would foresee a judgment of dismissal if paid the same day or a similar result to avoid the eviction and still get the rent paid.)

 

[1] Note there are several additional provisions including new first-appearance requirements; mandating landlord declarations for default judgments; changes to first appearance scheduling; and subject to specific court findings, an annual setting-aside of eviction-related judgments occurring after January 1, 2014; and new rent assistance fund provisions.

 

[2] ORS 90.630 is the statute important to MHP landlords, since it deals with defaults (other than nonpayment of rent) in manufactured housing communities.

[3] This article is not legal advice, It is my opinion only, based upon my reading of HB 2001. Members should check with their own legal counsel.