Phil Querin Q&A: Unauthorized Pet and Use of Correct Form

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Phil Querin

Unauthorized Pet and Use of Correct Form

 

Question.What form would someone use for unauthorized pet. Form 43 (continuing violations) says “not to use for pet”. But Form 43A is for distinct violations, i.e. one-time incidents. Is bringing an unauthorized pet into the community considered distinct rather than on-going?
 

 

Answer.  By way of disclaimer, ORS 90.630 was amended in the 2019 Legislative Session, and this bifurcated violation scheme (separate/distinct conduct vs. repetitive/ongoing conduct) is brand new. MHCO’s 2020 violation forms make an effort to deal with this, but largely by paraphrasing the statute. In short, the concept and statute can be confusing, as your question implies.

 

Although I did not sit on the Landlord-Tenant Coalition meetings discussing this change, I believe I understand the rationale for doing so, which is very legitimate: Before the 2019 legislation, if a person violated the rental agreement, the rules, or a law or ordinance, the only recourse was to issue a 30-day notice requiring that the act (e.g. noise, unruly conduct) or omission (e.g. failure to maintain the space) cease by the end of the 30thday.  While that approach works satisfactorily in most instances, there was always an open question whether, on single violations (e.g. yelling at the neighbors) could reoccur for the next 29 days and stop on the 30th, thereby avoiding termination of the tenancy, since it was “cured” within 30 days.

 

I always maintained that the statute permitted non-curable termination if the misconduct re-occurred within the 30 days, but the statute was not clear on the point, and I suspect others did not agree with me.

 

So the purpose of the 2019 amendment to ORS 90.630 was, in part, I believe, to address repeat violations within the 30-day period. To the extent it addresses the conundrum of allowing multiple isolated violations to continue for 29 days without termination, I believe it did a very good job.

 

Now to the new statute, ORS 90.630, which seems to raise the question you’re asking – since repetitive or continuing violations cannot involve pets or assistance animals; does that mean you cannot use Form 43 for an unauthorized pet?

 

My interpretation of the statute is that an “unauthorized pet” does not fall into the same category as a “pet” or “assistance animal” that has been previously approved by management. In the latter case, management should have a Pet Agreement (but not for the assistance animal) governing violations which would trigger a fine.[1]

 

So I believe you coulduse either notice here. But since treating it as a continuing violation would permit the offender to keep the animal in the community for 29 days and remove it by the 30thday to avoid termination of the tenancy. I don’t believe that is what you want.

 

My view is that the preferred approach is to treat the violation as a single event: i.e. bringing the pet into the community when it was never approved.  This gives you the fastest recourse in getting the pet removed, at the risk of a noncurable termination of the tenancy.

 

This is my opinion only, and based upon what I believe to be the rationale of the revised ORS 90.630; there are others that might disagree. So check with your own legal advisor for a definitive opinion.

 

[1]Note that ORS 90.405 provides for a ten-day notice to remove an unapproved pet if it is capable of causing damages to person or property. But it does not apply in manufactured housing communities.

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