Phil Querin Article: Oregon’s COVID Landlord -Tenant Restrictions After September 30, 2020 With UPDATED FORMS 101, 102, 103

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Oregon House Bill 4213.The law prohibits residential (and commercial evictions) for “nonpayment”[1]of rent during the “Emergency Period” and “Grace Period”. The “Emergency Period” is April 1, 2020 through September 30,2020; The “Grace Period” is  the 6-month period from April 1, 2020  through March31,2021, for a tenant to pay an outstandingrent balance. The law became effective on June 26, 2020.

 

“Nonpayment” means nonpayment of rent that becomes due duringthe Emergency Period. This means that rent coming due after the Emergency Period may result in the landlord’s issuance of a 72-hour or 144-hour notice.

 

October 1, 2020 through March 31, 2021. Since the Emergency Period ends on September 30, the focus of this article will be on that portion of the Grace Period between September 30 and March 31.

 

A tenant with an Outstanding Nonpayment Balance has a 6-month Grace Period ending on March 31,2021, to pay it.

 

Landlord’s Notice. The landlord may deliver a written notice (“Landlord Notice”) totenant that substantiallystates:

    1. The date that the Emergency Period ended;
    2. If rents and other payments coming due thereafter are not timely paid, Landlord may terminate the tenancy;
    3. That the Nonpayment Balance accrued during  the Emergency Period is still due and must be paid;
    4. Tenant will not owe a late charge for the Nonpayment Balance;
    5. Tenant is entitled to a 6-month Grace Period to repay the Nonpayment Balance that ends on March 31,2021;

6.   That within a specified date no earlier than 14 days following the delivery of the Landlord Notice, tenant must: (a) Pay the Nonpayment Balance; or (b) Notify the landlord that the   tenant intends  to pay the Nonpayment Balance by the end of the six-month Grace Period (See, “Tenant Notice” below.);

    1.  Tenant’s failure to give landlord the Tenant Notice may result in a penalty described below; and
    2.  The rents and other charges or fees coming due after the Emergency Period must be paid as usual or the landlord may terminate the tenancy under ORS 90.392(For-cause terminations – non-MHP),ORS 90.394(Termination for failure to pay rent) or ORS90.630(For-cause terminations – MHPs).[2]

 

The Landlord’s Notice may offer an alternate voluntary payment plan for payment to the Nonpayment Balance, but it must state that the alternate payment plan is voluntary.  Note that a landlord that accepts a partial payment does not waive his/her rights under ORS90.412(Waiver of termination of tenancy).

 

Caveat. Notwithstanding ORS90.220(9) (order in which landlord is to apply tenant’s rent payments), before applying tenant payments to the Nonpayment Balance, landlord must first apply a tenant’s rental payments,in the following order, to:

1. Rentforthecurrentrentalperiod;

2. Utility or servicecharges; 

3. Laterentpaymentcharges;and 

4. FeesorchargesowedbythetenantunderORS90.302(Fees allowed for certain landlord expenses)orotherfeesorchargesrelated todamageclaimsorotherclaimsagainstthetenant.

 

Tenant’s Notice. Ifalandlordgives a Landlord Notice,attendant who has an outstanding nonpayment balanceas of the date of Notice must notify the landlord of the tenant’s intention to use the 6-month grace period to pay the non-payment balance.

 

The Tenant’sNoticemustbe: Actualnoticeunder ORS 90.150(Service or delivery of actual notice) or given by electronic means, and must be given to the landlord by the date specified in Landlord’s Notice (that can be no earlier than 14 days following the delivery of the Landlord Notice).

 

Noncompliance. A tenant’s failure to give the Tenant Notice entitles the landlord to recover damages equal to 50 percent of one month’s rent following the Grace Period (which ends March 31, 2021). If a landlord violates this section, a tenant may obtain injunctive relief to recover possession or address any other violation of this sectionand may recover from the landlord an amount up to three (3) months’ periodic rent plus any actual damages.

 

Termination Notices Without CauseNote that under HB 4213, during the Emergency Period (April 1, 2020 – September 30, 2020) landlords were prohibited from issuing no-cause termination notices underORS 90.427. While community management may not legally  issue no-cause eviction notices to tenants who own their home, that limitation would not apply to park-owned homes during the first year of the tenant’s occupancy.

 

One-Year Statute of Limitations. Notwithstanding ORS12.125(one-year statute of limitations for actions arising under residential lease/rental agreement),theone-year periodistolled (i.e. suspended) until March 31, 2021, for claims by a landlord based on a tenant’s nonpayment or Nonpayment Balance.

 

City of Portland Rules. The City of Portland has temporarily amended its housing code to provide thatif anyrent increase effective between September 16, 2020 and March 31, 2021 is received by a tenant who is unable to pay the increased amount, the renter is potentially eligible for Relocation Assistance from the landlord. See: Portland City Code,  PCC 30.01.085

The Tenant Relocation Assistance amounts are as follows:  $2,900 for a studio or Single Room Occupancy Dwelling Unit; $3,300 for a one-bedroom Dwelling Unit; $4,200 for a two-bedroom Dwelling Unit; and $4,500 for a three-bedroom or larger Dwelling Unit.  I have already released an article for MHCO opining that I do not believe it applies to manufactured housing communities. For a discussion on the issue go to MHCO.ORG article titled: “Phil Querin Article: Application of Portland's New Tenant Ordinances to Manufactured Housing Communities”, July 1, 2019.

 

 

Late-Breaking News.On September 24, the Multnomah County Board of Commissioners voted to extend its moratorium on residential evictions until January 8, 2021. It appears this would conflict with that portion of HB 4213 which would permit the commencement of eviction proceedings for rent coming due for the periods October and November 2020.[3]

 

Centers for Disease Control and Prevention (“CDC”) Moratorium.[4]The federal government passed the CARES Act, which was intended to protect renters in apartments and single-family homes financed with a federally backed mortgage (e.g. Fannie and Freddie, etc.). It has since expired, which, in part, is why the CDC Order was enacted. 

 

However, the Moratorium does not preclude State, local, territorial, and tribal authorities from imposing additional requirements that provide greater public-health protection and are more restrictivethan the requirements in this Order. (Emphasis added.)  I read this text to mean that the Order does not “preempt” or “supersede” state and local laws that are more restrictive. Oregon’s HB 4213 may be exactly the type of law that is not preempted by the CDC Order, assuming that one interprets it as more restrictive.  I have already released an article for MHCO opining that I believe the CDC Moratorium is preempted by HB 4213. For a discussion on the issue go to MHCO.ORG: “Phil Querin: COVID, HB 2314 and the CDC’s Recent Order”, September 3, 2020.

 

 

Late-Breaking News: Executive Order 20-56.  As of today’s date, September 28, 2020, Governor Brown has extended the eviction moratorium from September 30 through December 3, 2020. It applies to evictions based upon nonpayment of rent and no-cause evictions. This too appears to undercut that portion of HB 4213 which would permit the commencement of eviction proceedings for rent coming due for the periods October and November 2020.

 

 

[1]Nonpayment”includes the nonpayment of rent,late charges,utility charges or any other service charge or fee, as described in the rental agreement orORS 91.090, 91.210 or 91.220, during the emergency period. “Nonpayment balance” includes all or a part of the net total amount of all itemsof nonpayment by atenant.

 

 

[2]Note: MHCO will be releasing a Landlord Notice form shortly.

 

[3]I did not include December 2020, since rent would not be late until after January 7, so arguably, an eviction could be commenced after the moratorium ended on January 8. 

[4]Full text can be found here.

 
 

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