Phil Querin Article - New Rules for Non Payment Of Rent Evictions - SB278 - July 1st It's The Law (Updated July 13, 2021)

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[Update: The Multnomah County Board of Commissioners has passed Ordinance 1296, which changed the 60-day window to 90-days for the Pause on Notices and Evictions, as described below. This Ordinance became effective on July 9, 2021 and only applies to tenants residing in Multnomah County. Timeframes are updated below.]

In mid-June, the Oregon Legislature passed another bill, SB 278 which accomplishes three things:

1) It provides a 60-day window in which a tenant seeking rental assistance may not be evicted for nonpayment of current (i.e., non-moratorium related) rents, charges and fees;

2) It provides a method for landlords impacted by the 60-day delay (discussed below) to recoup lost rents, charges and fees if the tenant does not qualify for rental assistance; and

3) It directs the Landlord Compensation Fund to pay the full 100% rent loss on applications to the program.

The Multnomah County Board of Commissioners recently passed Ordinance 1296. It made the following change to SB 278 for tenants residing in Multnomah County only: It extended the timeline following Landlord’s receipt of documentation of Tenant’s application for rent assistance from 60 to 90 days before which service of a 10-day Notice of Nonpayment of Rent or filing of an Eviction is permitted.

Notices and Evictions: 60-Day Pause (or 90 days if in Multnomah County)

Application. SB 278’s 60-day delay, and Ordinance 1296’s 90-day delay (for Multnomah County), for eviction proceedings only applies to notices of termination for nonpayment given on or after July 1, 2021.

My Definitions.

“Moratorium Debts” are any unpaid rents, charges, and fees that have accrued between April 1, 2020, and June 30, 2021. (This is my term; it is not in the bill. Many of the Legislature’s Bills refer to “nonpayment” but with different meanings.)

“Current Rent” includes any rents, charges and fees, described as a “Nonpayment” that come due on or after July 1, 2021. (This is also my term to avoid confusion. It is not in the bill.)

SB 278 Definitions.

“Nonpayment” refers to the nonpayment of sums due to the landlord, including payment of rent, late charges, utility or service charges or any other charge or fee described in the rental agreement, including the following statutory sums:

ORS 90.140 (Types of payments landlord may require or accept),
ORS
90.302 (Fees allowed for certain landlord expenses or tenant non-compliance), ORS 90.315 (utility or service payments),

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ORS 90.392 (termination of tenancy for cause),
ORS
90.394 (termination of tenancy for failure to pay rent),
ORS
90.560 to 90.584 (provisions for various utilities and service charges); or ORS 90.630 (termination by landlord: manufactured dwelling or floating home).

“Documentation” includes electronic mail, a screenshot or other written or electronic Document- ation from a rent assistance provider.1 The definition of “documentation” above is straight from the Bill and relates to the procedure whereby the tenant applies for rental assistance and receives a receipt which is provided to the landlord.

60-Day Termination Pause (or 90 days if in Multnomah County). A tenant who is falling behind (or is in danger of falling behind) in paying their Current Rent may apply for rental assistance and provide the appropriate Documentation to their landlord. Tenant need only demonstrate that he/she applied for rental assistance in order to receive the 60-day pause (or 90 days if in Multnomah County). Upon receipt of the Documentation the landlord may not, for the next 60 days (or 90 days if in Multnomah County):

Deliver a termination notice for nonpayment, or
Initiate or continue an action for possession (i.e., an FED) based upon a termination

notice for nonpayment.

Eviction Protection Notice. This is a new statutory notice regarding eviction protection that is required to be delivered with:

Any notice of termination for nonpayment of rent; and
Any summons for a complaint seeking possession based on nonpayment of any sums

due to the landlord which are classified under the term “nonpayment” as defined above.

The court system will translate the notice into Spanish, Korean, Russian, Vietnamese and Chinese. The translated notices will be available on their main webpage www.courts.oregon.gov. The court clerk is also required to mail these notices with any summons and complaint mailed to a tenant from the Court.

Tenant Delivery of Documentation. The tenant may deliver the Documentation (including but not limited to, copies, photographs, screen shots, etc.) by email, text message, or any other “method reasonably calculated to achieve receipt by the landlord.”

Timing of Documentation.

  • If the tenant provides the appropriate Documentation prior to the Landlord issuing a

    notice of termination for nonpayment, the landlord must wait 60 days (or 90 days if in Multnomah County) after receipt of the Documentation to issue any notice of termination for nonpayment.

  • If the tenant provides the appropriate Documentation after the issuance of a notice of termination for nonpayment the landlord may not act upon that notice of termination or initiate an FED action based on the nonpayment. In order to terminate a tenancy after

    1 The Housing and Community Services Department is funneling federal, state, and local funds to many different “rent assistance providers,” including public bodies, local governments, and subgrantees (i.e., agencies and non-profits). They will provide a receipt to verify the submission of an application for rental assistance.

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expiration of the 60-day period (or 90 days if in Multnomah County), the landlord must issue a new notice of termination
o If 60 days (or 90 days if in Multnomah County) elapsed since the landlord received

Documentation, the landlord need not provide a new Eviction Protection Notice.

(TIP: If in doubt about whether the new Notice was included the first time, include

it after expiration of the 60 or 90-day pause; there is no risk in doing so.)2
If the Tenant provides Documentation to the landlord or the Court after the eviction proceedings have already begun, the court will stay the proceeding, and reschedule a first appearance for a date following the 60-day period (or 90-day period if in

Multnomah County). Trial may occur promptly thereafter.

Dismissal of Eviction for Nonpayment. The court shall dismiss an FED action based upon a notice of termination for nonpayment if:

The landlord failed to provide the new Eviction Protection Notice;
The landlord “substantially caused” the tenant’s nonpayment by refusing to

“reasonably participate with a rental assistance program”;
o Note: Landlord is not required to apply for the Landlord Compensation Fund, so

the failure to do so cannot be used to claim the landlord “caused” the tenant’s

nonpayment.
The landlord receives rental assistance covering the rent owed under the notice; or
The tenant had provided the Documentation before the FED (or action for

possession)was filed.

Penalties for Landlord Violation. A violation of SB 278 will result in the tenant being able to pursue injunctive relief to recover possession or address any other landlord violations and will give the tenant a defense in an action for possession.

Tenant Not Entitled to Costs, Attorney Fees, or Prevailing Party Fees. Actions dismissed under these rules will not result in a tenant recovering costs and fees if:

The landlord delivered all required notices (i.e., the new Eviction Protection Notice)
The landlord did not know, or have reason to know at the time of commencing the

action, that the tenant had already provided the required Documentation; and
The landlord promptly dismissed the action upon becoming aware of the

Documentation (Note: All three must occur.)

Dated Receipts of Application for Rental Assistance. SB 278 also directs that all programs providing rental assistance will promptly provide a dated receipt for the tenant’s application.

Repeal. These SB 278 and Ordinance 1296 rules will automatically be repealed on March 1, 2022.

2 Note: The Eviction Protection Notice is called “new” because the previous Bill, HB 4401, also required a Notice of Eviction Protection (along with the Declaration of Hardship). However, this is not the same form, although the caption of the form also says, “THIS IS AN IMPORTANT NOTICE ABOUT YOUR RIGHTS TO PROTECTION AGAINST EVICTION FOR NONPAYMENT.” Essentially, SB 278 created a similar, but completely new form, that I have called the Eviction Protection Notice to avoid confusion.

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Landlord Compensation

Funding for the 60-Day Pause. SB 278 directs the Housing and Community Services Department to make funds available to a third-party provider (yet to be determined) to compensate landlords for their potential 60-day loss of revenue. To receive the compensation a landlord must demonstrate that:

The tenant’s rental assistance application was denied; or
Sixty (60) days have elapsed since the tenant provided their Documentation to the

landlord, and that the landlord has not received assistance.

[Note: Though Ordinance 1296 changes the 60-day window to a 90-day window for notices of termination and evictions for nonpayment in Multnomah County only, it does not make any changes to the portion of SB 278 that addresses landlord funding for the 60-day pause. It is unclear at this time how, or whether, the state will address Multnomah County’s rule in awarding funding for landlords whose tenants have not received assistance.]

Repeal of 60-Day Delay Compensation. Funding for landlords experiencing losses during 60-day pause will be automatically repealed on March 1, 2023.

Landlord Compensation Fund for Moratorium Debts. Originally HB 4401 provided that landlords could receive compensation for 80% of their tenant’s outstanding Moratorium Debts (rents, charges, and fees incurred between April 1, 2020, and the date of a landlord’s application to the fund – or June 30, 2021, at the latest). The last date to apply to the Landlord Compensation Fund (the “Fund”) was June 23, 2021.

To receive consideration for funding under HB 4401, the landlord had to agree to forgive 20% of the tenant’s debt. SB 278 now directs the Fund to pay 100% of the past-due rent due from qualified tenants that the landlord has not collected after April 1, 2020, and on or before the earlier of June 30, 2021, or the date of the application.

  • Under SB 278 landlords are no longer required to agree to forgive 20% of their tenant’s Moratorium Debts.

  • Landlords must still repay the Fund for any repayment of Moratorium Debts they receive from, or on behalf of, a qualifying tenant.

    Retroactive Application of 100% Coverage. The new rule requiring the Fund to pay 100% of past due Moratorium Debt applies to all applications approved on, before, or after the effective date of SB 278, which as an “emergency bill”, became effective on June 25, 2021, the date of the Governor’s signature.

    Furthermore, it directs the Fund to pay the remaining 20% of any applications for compensation already made under HB 4401 that were already approved prior to the passage of SB 278, without the need for an additional application.

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[1] The Housing and Community Services Department is funneling federal, state, and local funds to many different “rent assistance providers,” including public bodies, local governments, and subgrantees (i.e., agencies and non-profits). They will provide a receipt to verify the submission of an application for rental assistance.

[2] Note: The Eviction Protection Notice is called “new” because the previous Bill, HB 4401, also required a Notice of Eviction Protection (along with the Declaration of Hardship). However, this is not the same form, although the caption of the form also says, “THIS IS AN IMPORTANT NOTICE ABOUT YOUR RIGHTS TO PROTECTION AGAINST EVICTION FOR NONPAYMENT.” Essentially, SB 278 created a similar, but completely new form, that I have called the Eviction Protection Notice to avoid confusion.

 

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