Complaints can arise from the way you advertise, show units, apply occupancy standards, and enforce community rules.

This week MHCO looks at fair housing problems that can arise when dealing with families with children. Fair housing law bans discrimination against families with children, but there’s more to it than that. You could get into fair housing trouble from the way that you advertise your property, show units, apply occupancy standards, and enforce community rules.

Attached above are revised (as of April 2, 2020) Forms 13A and 13B for rent concession.  

COVID 19 - Nonpayment of Rent In Multnomah County/City of Portland And The Rest of Oregon

Declaration of Emergency-Additional Measures

Multnomah County/Portland. Effective immediately, Multnomah County (which includes the City of Portland) has issued a temporary moratorium on nonpayment of rent evictions caused by wage loss resulting from COVID-19.

To establish eligibility, affected tenants must:

1. Demonstrate a substantial loss of income, through documentation or other objectively verifiable means, resulting from the COVID-19 Pandemic (including County, State, and Federal restrictions imposed to mitigate its spread); and 

2. Notify their landlords on or before the day rent is duethat they are unable to pay rent due to a substantial loss of income as a result of the COVID-19 pandemic.

The Moratorium does not declare that rent is forgiven, or is not otherwise due on time. It merely imposes a hold on eviction proceedings where the nonpayment results from a verifiable and documented loss of income due to COVID 19. 

For example, a restaurant service worker who no longer has a job due to closure would likely be eligible under this Moratorium if timely notification is made to the landlord.

The Executive Rule clarifies that:

• Nothing in the Moratorium relieves tenants of liability for unpaid rent;
• Any deferred rent must be paid within six months after expiration of Oregon’s Declaration of Emergency;
• No late fees may be charged for rent that has been deferred due to the Moratorium;
• Landlord may not file for eviction due to unpaid rent deferred by the Moratorium.

Multnomah County Circuit Court hearings for eviction proceedings are suspended until April 30, 2020, or later.  So the question for landlords is how to proceed if there is a non-payment of rent for which the tenant has not sought, or has not qualified for, rent deferral under the Executive Rule? 

Should a 72-hour notice be sent? What happens if it is not paid? Can an eviction complaint be filed, even though the FED court is closed?

These are judgment calls up to each landlord. Much depends on the tenant. Is he/she a serial late-payer, in which case, this Moratorium might come as a welcome excuse for nonpayment.  In other cases, the tenant may be legitimately short of funds due to COVID-related job loss. In the former case, perhaps the 72-hour notice should be sent – after all, there is a non-curable right of termination when three such notices are sent within a rolling 12-month period. The same approach could be said about filing for eviction, even though the courts are currently closed.

For landlords of communities within Multnomah County/City of Portland, they should inform their tenants about the Moratorium, so they can apply for the Moratorium, i.e. rent deferral. Otherwise, if rent is not paid, a landlord is left to wonder about the cause. With non-communicative tenants, written notices are the only real alternative, even if landlords cannot act on them right now.  

The Rest of Oregon.  Subject to jurisdictional changes in other cities or counties, at the current time,there are no abate/deferral of rent laws similar to those discussed above. However, residents elsewhere are seeking rent concessions, and some landlords may be willing to voluntarily cooperate. 

Accordingly, MHCO felt that the Multnomah County/Portland model had certain merits, since we felt it was better for landlords to adopt voluntary arrangements, such as partial payments consistent with ORS 90.417, versus having residents unilaterally paying reduced rent or nothing at all with no explanation.  Although we do not agree with the mandatory moratorium on non-payment of rent evictions, that issue is, for now, moot, since Oregon circuit courts are closed to such proceedings.

What MHCO is Doing.  We are creating two new forms to address rent deferrals. The first one is limited to communities located withinthe Multnomah County/City of Portland area (Form 13-A). The second one is similar to the first insofar as allowing deferred/partial payments, but apples to the rest of the state (Form 13-B).  Both forms have certain similarities, although Form 13-B gives more latitude to negotiate with tenants over the length of the repayment period. The Multnomah County/Portland Form 13-A mandates a 6-month term.

Final Note.  When using either form, it is important to remember that resident participation in both rent deferral programs is based upon several prerequisites:

1. The request and documentation must occur before the applicable rental period for which the relief is sought; 
2. There must be evidence of actual or impending “substantial loss of income”;
3.  The evidence must be in the form of “documentation” or through other “objectively verifiable means”; and
4. The loss of income must “result” from the COVID-19 Pandemic.  

Lastly, this is not to suggest that if a resident was in dire straits for reasons unrelated to COVID-19, landlords should not try to assist if possible. We’re all in this together.

In response to the COVID 19 epidemic, Governor Kate Brown joined nearly a dozen other governors on Monday issuing a sweeping order (Executive Order 20-12) that essentially requires people to stay home except for essential travel, such as to the grocery store or for medical needs. Violation of the Order is a Class C misdemeanor, which carries a maximum penalty of 30 days in jail and/or a fine of $1,250.

As of 12:01 a.m. on March 24, a long list of businesses (from amusement parks to youth clubs) were ordered shuttered. Most likely, the list of businesses ordered to close does not affect a manufactured home park, RV park or floating home community; however, community owners should review the list of businesses to ensure compliance.

Although “campgrounds” were ordered closed, RV parks are exempted.

Pools, sports courts and playgrounds must be closed. 

The Governor's order does not change her previous order (Executive Order 20-07) with respect to restaurants, bars, and other establishments that serve food and drink, which Order prohibits on-premises consumption of food or drink but allows take-out or delivery services.

Outdoor Activities

Governor Brown's order specifically allows people to be outside for walking or hiking but any outdoor activity that cannot be done while maintaining social distancing (i.e. basketball) is prohibited. State and community parks may remain open if social distancing can be maintained and signage about social distancing must be prominently displayed.

Employees

Effective March 25, all businesses in Oregon shall facilitate telework and work at home by employees, to the maximum extent possible. Work in offices is prohibited whenever telework and work at home options are available, in light of position duties, availability of teleworking equipment, and network adequacy. In other words, your employees do not have to work from home if their duties require them to be on site (maintenance workers) or if they are not set up to work from home (they don’t have the ability or capability from working from home).

Social Distancing Policy

When telework is unavailable, businesses must designate an employee to establish, implement and enforce social distancing policies, consistent with the guidance from the Oregon Health Authority. Such policies must address how the business or non-profit will maintain social distancing protocols for business-critical visitors.

Bill Miner | Davis Wright TremaineLLP

1300 SW Fifth Avenue, Suite 2300 | Portland, OR 97201

Tel: (503) 778-5477 | Fax: (503) 778-5299 

Email: billminer@dwt.com| Website: www.dwt.com

If you do not yet have a policy in place, you should contact your legal or human resource advisor to assist you with the drafting of a social distancing policy. Please note that DWT is offering a draft policy at a fixed price for MHCO members.

The Landlord Newsletter is general in nature and is not intended as legal advice for any specific issue that might arise, since every situation is different. Always consult a knowledgeable landlord attorney with your specific legal issues.

On Sunday, March 22, 2020, Governor Kate Brown issued executive order 20-11, which prohibits all law enforcement officers in Oregon from enforcing nonpayment evictions. Officers are prohibited from “serving, delivering or acting on any notice, order or writ of termination of tenancy” based on the nonpayment of rent, fees, utilities, or late charges. The order also applies to no-cause evictions. The order is effective immediately, and will remain in effect for 90 days unless extended or terminated earlier by the governor.

The order does not prohibit landlords from issuing such notices or filing eviction cases in court. However, as a practical matter, nonpayment cases could not be enforced with an actual eviction by the sheriff’s office for at least the next 90 days or longer. In addition, Oregon courts are not holding any eviction hearings whatsoever, which will likely continue through at least the end of April. Given these circumstances, the recommended practice is to hold off on issuing nonpayment eviction notices for the next several months, but consult with your attorney in making any such decision.

It is important to note that the governor’s order does not prohibit the enforcement of “for cause” eviction notices (i.e., for bad tenant behavior, condition of the rental premises, unauthorized pets or occupants, etc.). Again, though, with the courts effectively closed, no eviction cases will be processed for the foreseeable future. (Although it should be possible for attorneys to continue filing eviction cases online to have them ready when the courts start holding hearings again.)

The order does NOT relieve tenants of their duty to pay rent – it merely puts a hold on nonpayment evictions. In Multnomah County, landlords are required to offer tenants a deferred payment plan. To be eligible, an affected tenant must be able to demonstrate with documentation or other objectively verifiable means a “substantial loss of income” resulting from the COVID-19 pandemic and/or government restrictions. The tenant must notify the landlord with this information on or before the day that rent is due to be eligible for rent deferment. The tenant must pay accrued rent to the landlord within six months after expiration of this emergency, and the landlord cannot assess late fees.

The Multnomah County approach also makes sense for landlords throughout the state, since a wave of evictions in 3 months would not serve anyone’s interests. Various rent deferment forms are already available from several landlord trade associations. A well-drafted deferment form should protect the tenant’s continued housing, while also protecting the landlord’s right to recover rent and other charges owed. As usual, consult with an attorney on the use of any such form to make sure that it complies with Oregon law and adequately protects your interests as a landlord.

COVID-2019 is a new strain of coronavirus that emerged in central China at the end of 2019 and continues to spread around the globe. The COVID-2019 outbreak has been declared a pandemic by the World Health Organization (WHO) and is already having a major effect on international commerce. As the outbreak expands in the United States, commercial real estate owners and property managers should be well prepared to monitor and address concerns impacting the industry as a result of the virus.

Question:  We need clarification on 30- day notices.  Assuming courts are closed for longer than 2 weeks - this could become 2 months. What should a landlord do who has a tenant  problem that warrants issuance of a 30-day notice?  If the landlord gives a 30-day notice now, he/she has two possible choices: (a) Accept no rent for the second month the 30-day notice spans; or (b) or accept only a portion of the second month’s rent prorated through the last day of the “Deadline” (i.e. the last day in the Notice for the tenant to cure the default). Is there a way around this, so the landlord can collect the entire month’s rent for the second month?

Answer. Accepting rent for the period beyond the Deadline means that the tenant is entitled to occupy the space even after the failure to cure within the 30-day cure period. Yet the failure to cure is the event after which the landlord may file for eviction; the tenant has no legal right to remain on the space. Accepting rent for that period creates a waiver of the right to treat the failure to cure as a default upon which the eviction may be filed.

There are perhaps three ways to prevent that from happening, so that a landlord may receive rent for the entirety of the second month, notwithstanding the fact that it covers a period beyond the Deadline.

1. The preferred way in my opinion, is to extend the cure period in the notice. When it is issued, extend the 30-day cure period so that it goes through the 30^thor 31^stday (as applicable) of the second month.

EXAMPLE:If a 30-day notice is mailed on March 19, normally, the time to cure would end 33 days hence, i.e. starting with March 20 being the first day, and ending at midnight April 21^stas the end of the cure period. In that case, the landlord can either take no rentfor April or take rent proratedthrough the 21 days of April. 

But if the cure period in the notice is extended through April, and ends  at midnight (end of day) on April 30^ththe L could accept rent for the entire month of April. If the tenant pays the rent for April andcures the violation by April 30, the problem has gone away.  

Of course, there still is a problem if the tenant does not cure and does not pay any rent, if the courts are still closed and no eviction (either for the failure to cure, or failure to pay after issuance of a 72-hour notice) can be filed.

2. Another alternative is to unilaterally extend (in writing) the cure period for another 30 or 31 days on condition rent was paid, to span the following month. Can a landlord do that? In my opinion yes – it does not reduce a tenant right, but expands it. Of course, a judge could see it differently.

3. Lastly, the landlord can try to enter into a written agreement with the tenant (after issuance of the 30-day notice) that acceptance of rent for the balance of the second month shall not be construed as a waiver. But what’s in it for the tenant?

The only time this seems feasible is where the tenant is cooperative about curing within the 30 days, and agrees in writing that if landlord accepts the full rent for the second month it will not constitute a waiver.