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Answer:  Since there is no rental agreement and you (presumably) have not accepted any rent or other payments from him, he is technically a “squatter.”  Under Oregon law, a “squatter” means a person occupying a dwelling unit who is not so entitled under a rental agreement (ORS 90.100 (43)).  The “dwelling unit” in this case is the RV space.  Occupancy by a squatter is not governed by the usual landlord-tenant laws under ORS Chapter 90.

 

This person is first and foremost a trespasser.  As such, you should first try contacting the police or sheriff, explain the situation to them, and ask them to remove this person from the park. You should also ask them to issue a no trespass order so that if he returns, he can be arrested for trespassing.

 

Unfortunately, sometimes law enforcement officers are reluctant to remove squatters even when they have the lawful authority to do so (i.e., if the squatter lies and says he has paid rent to the park).  In that case, you will need to resort to court action.

 

There is a “midnight move-in” statute (ORS 105.115 (1)(c)) that allows RV parks to immediately file an eviction case in court without notice if the owner or possessor of an RV places it on park property without the park’s prior consent.  However, since the statute is very specific about applying only to “recreational vehicles,” this statute would not work in your case where the squatter has only a tent.

 

Fortunately, there is another statute (ORS 105.115 (1)(b)) that also allows a landowner to file an immediate eviction case when a “person in possession . . . is holding possession without any written lease or agreement.”  When you file the eviction case at your county courthouse, ask for and fill out the eviction complaint form for a tenancy notcovered by ORS Chapter 90.  In the section where you must indicate why the park is entitled to possession of the premises, check the “No Notice” box and write:  “ORS 105.115 (1)(b) – Trespasser in possession.” (NOTE:  The filing fee for this kind of case is more than a regular residential eviction case – $281 vs. $88.)  After filing, the case will proceed like any other eviction case.

 

Finally, be aware that in rare instances, a court might decide that an eviction case is not the right kind of  case to file in this situation (although in my opinion, any such ruling would be legally incorrect under this particular fact pattern).  If that were to happen, you would likely need to file an ejectment case, which is similar to an eviction case, but takes longer and would usually require the assistance of an attorney.

 

Technically, this order does not become law until it is published in the Federal Register this Friday, September 4. Until then, and possibly thereafter, lawyers and others will have some time to figure out how it applies.

 

However, in Oregon, there may be a little more time to figure it out. I say this because the CDC order expressly states:

 

This Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protectionthan the requirements listed in this Order.

 

***

 

In accordance with 42 U.S.C. 264(e), this Order 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 

 

Of course, the big difference between the CDC’s Order and Oregon’s HB 4213 is that the former runs through December 31, 2020, while the protections against a nonpayment of rent evictions under HB 4213 expire on September 30, 2020 – unless it is extended, which seems likely.

 

Briefly, HB 4213 provides that alandlordmaynot,andmaynotthreatento:

• Deliveranoticeofterminationofarentalagreementbasedonatenant’snonpayment balance; 
• Initiate or continue a nonpayment of rent eviction basedonanoticeofterminationfornonpaymentdeliveredonorafterApril1,2020;
• Takeanyactionthatwouldinterferewithatenant’spossessionoruseofadwelling unitbasedonatenant’snonpaymentbalance; 
• Assessalatefeeoranyotherpenaltyonatenant’snonpayment;[2]or 
• Reportatenant’snonpaymentbalanceasdelinquenttoanyconsumercreditreporting agency.

 

If a landlord may not issue a 72-hour or 144-hour notice of termination, which is required before filing for a nonpayment of rent eviction in Oregon – or engage in any of the other above-listed activities – it would seem to be more restrictive than the CDC Order. In other words, the Order may not be necessary for tenants to use.

 

So, for the time being, we may want to take a wait-and-see approach to the CDC Order, before requiring tenants to pre-qualify for protection by signing sworn statements under oath about all of the efforts they have taken to pay their rent. I, for one, am not sure a landlord should ask about their tenants’ private acts taken to pay the rent on time. It’s one thing to struggle to make ends meet, but quite another to publicly explain it to others.

 

In the meantime, perhaps we can first determine whether Oregon’s laws are sufficient. As we approach the end of September, we will see whether the protections afforded by SB 4213 are sufficient. 

 

Of course, this isn’t legal advice; readers should consult with their own attorneys for a formal opinion.

Answer:  Oregon House Bill 4213 prohibits residential evictions (including eviction notices) based on nonpayment of rent or other charges owed to the landlord, and further prohibits no-cause evictions against residential tenants through September 30, 2020.  The federal government through the CDC issued an order placing a nationwide ban on nonpayment residential evictions through December 31, 2020.  (Under both, rent is deferred, not waived, although HB 4213 waives late fees and gives tenants until March 31, 2021 to repay past-due amounts.)

 

Oregon HB 4213 protects tenants from nonpayment and no-cause evictions until September 30, 2020.  After that, the CDC order takes over to protect tenants ifthey submit a sworn declaration to the landlord stating that the tenant:  (1) has used best efforts to obtain all available government housing assistance, (2) does not expect to earn more than $99,000 in 2020, or no more than $198,000 if filing taxes jointly, (3) is unable to pay full rent due to lost income, lost employment, or extraordinary medical expenses, (4) is using best efforts to make timely partial rent payments as circumstances permit, (5) if evicted is likely to become homeless or will need to move to “a new residence shared by other people who live in close quarters,” (6) understands that rent, late fees and other lease charges must eventually be paid in full, and (7) understands that after December 31, 2020, the landlord may evict the tenant if past-due payments are not made in full.

 

The bottom line is that RV parks should NOT be issuing anynonpayment notices (i.e., 72-hour rent nonpayment notices or otherwise) or no-cause notices to tenants until at least October, which is when the statewide eviction moratorium under HB 4213 is scheduled to end.  And while I have my doubts about the legality and enforceability of the CDC order, I also recommend that landlords notissue any nonpayment notices until the end of the year ifa tenant submits the required declaration.  There are potential criminal penalties for landlords who violate the CDC order, which together with the cost of litigation make it entirely too risky to ignore.

 

The other issue is whether HB 4213 and the CDC order apply to short-term, “vacation occupants” in an RV park?  The answer is “no.”  In Oregon, “vacation occupants” are not covered by the protections given to “tenants” by HB 4213 and ORS Chapter 90.  The CDC order also exempts properties “rented to a temporary guest or seasonal tenant as defined under the laws of the State, territorial, tribal, or local jurisdiction.”

 

A “vacation occupant” under Oregon law meansoccupancy in a dwelling unit (which includes an RV rental space), that has all of the following characteristics:  (a) The occupant rents the unit for vacation purposes only, not as a principal residence; (b) the occupant has a principal residence other than at the unit; and (c) the period of authorized occupancy does not exceed 45 days.  So long as your temporary RV park guests fall into this category, they cannot exercise any tenancy-based rights under either state or federal law to avoid being removed from the park for nonpayment.  However, be careful to ensure that your temporary guests actually fit this category, preferably with a written registration agreement specifying that they are, in fact, vacation occupants.

 

As usual, you should consult with a knowledgeable attorney before you resume issuing nonpayment or no-cause eviction notices.  Also be sure to check whether your county or local municipality may have enacted a broader moratorium that could cover short-term RV guests.

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.  

Previously, a rent increase of 10% or more, as measured over a rolling 12-month period, gave option a tenant the ability to request Relocation Assistance from their landlord.  Now, all rent increases are frozen for nonexempt tenancies between September 16, 2020 and March 31, 2021. Two major exemptions: (a) Renter shares the dwelling unit with the landlord or (b) The tenancy is week-to-week. For a complete list go to: Administrative Rules.

 

Rent Increase Notices Issued After September 16. If the landlord issued the rent increase notice after September 16, and represents in good faith that they were not aware of the new ordinance, he or she may provide written notice to the tenant that rescindsthe rent increase. Doing so relieves the landlord of the potential relocation assistance obligation. However, the tenant must receive the rescission notice from the landlord within 30 calendar days from the delivery of the original rent increase notice.

 

Rent Increase Notices Issued Before September 16. If the landlord has already given notice of a rent increase that becomes effective between September 16, 2020 and March 31, 2021, thus triggering the potential Relocation Assistance payment, the tenant has 45 calendar days after receiving the rent increase notice or until September 30, 2020, whichever is longer, to provide written request for Relocation Assistance to the landlord. 

 

However, the landlord may provide written notice to the tenant that rescinds the rent increase notice and refunds any increased rent paid by the tenant, thus relieving the landlord of the potential obligation.  The tenant must receive the landlord’s notice and refund of increased rents paid no later than 30 calendar days after receiving the tenant’s written notice requesting Relocation Assistance. 

 

Portland City Limits.The Relocation Assistance rules only apply to “residential rental units” within Portland city limits, which can be managed by an owner, a sublessor, or property management company. They can be either month-to-month rental agreements or fixed-term tenancies (i.e. leases). 

Does This Apply To Manufactured Housing Communities? In my opinion “No”, but others may disagree, and should secure their own opinion. I say this because although PCC 30.01.085does refer to “Dwelling Units” as defined in the Oregon Landlord Tenant Act[1](and that law says that if it is in a manufactured housing community, they are referring to the space and not the structure). But how can relocation assistance be categorized for a community space as being one-bedroom, two-bedroom or three-bedroom, or larger?  If manufactured housing spaces were ever intended to be included in this ordinance, the drafters would have had to include the structure in order to determine the amount of the relocation assistance. They did not do so. 

Secondly, for some reason PCC 30.01.085lists several exemptions to the relocation assistance rules, but notes that: “For purposes of the exemptions provided in this Subsection, “Dwelling Unit” is defined by PCC 33.910, and not by ORS 90.100.” But Portland City Code 33.910 defines a “Dwelling Unit” based upon “Residential Structure Types” such as Accessory Dwelling Units, Duplexes, or a “dwelling unit located on its own lot”. It also defines a “Dwelling Unit” as a “building or portion of a building….”  

So, once again, manufactured housing appears to be the inadvertent beneficiary of drafting oversight, which in this case, is a good thing. 

Caveat: The above is not to be relied upon as legal advice. Readers are encouraged to secure their own legal opinion.

Answer.Under SB 608 rent increases are limited to 7% plus the September-to-September average change in the CPI, for All Urban Consumers, West Region (All Items), as published by the Bureau of Labor Statistics of the United States Department of Labor in September of the prior calendar year (“the CAP”)

 

To increase rent on a month-to-month tenancy, the Landlordmust:

• Give 90-days’ advance written notice (MHCO Form 49)

• Increases may not exceed theCAP.

• Note: For manufactured housing communities in the City of Portland,  Ordinance 30.01.085 provides for the payment of Relocation Assistance for tenants when the rent increase is 10% or more.

The writtennotice must state:

• Amount of rentincrease;
• Amount of the new rent (i.e. total of old rent plusincrease);
• Facts supporting the Exemption,[1]if the increase is above the CAP;  and
• The date on which the increase becomes effective.

 

No later than September 30th of each year, the Oregon Department of Administrative Services (“the Department”) is required to calculate the maximum annual rent increase percentage under theC AP for the following calendar year as seven percent (7.00%) plusthe September annual 12-month average change in the in the CPIas most recently published by the Bureau of Labor Statistics of the United States Department ofLabor. For the calendar year 2021 that figure is 9.2% (i.e. 7.00% + 2.20%).

To your question as to whether the effective date of the rent increase amount is based on when the notice was sentor when it became effective, I view this as largely academic, since the “annual 12-month average change” is based upon a calculation of the percent change relative to the previous July through August. Thus, the maximum rent CAP of 9.20% will apply to the calendar year 2021, beginning on January 1, and will be known 90 days before January 1, 2021. If the notice is hand-delivered, or nailed and mailed on October 1, 2020, it would be both legal when sent, and legal when it became effective.[2] 

 

If your rent increase was over the correct maximum figure of 9.20%, but failed to set forth the facts supporting your exemption, you would be in violation of the CAP, which could make you liable to the tenant for 3X the monthly rent, plus actual damages, costs and attorney fees. Also, being wrong would invalidate your increase notice.

That needs to change. 

Diversity and Inclusion is a huge topic, and it goes so much deeper then race relations. We need to acquire a greater awareness and sensitivity to all the issues that go beyond assumed categories. Diversity is the mosaic of people who bring a variety of backgrounds, styles, perspectives, values, and beliefs to the groups and organizations in which they interact. 

Let us look at the rental housing industry as an example. When I became a “rental hostess” at the age of 21, every on-site manager position was held by either an elderly or middle-aged woman. Our office staff was all female, but the Regional Managers, VP’s, and Senior Directors were men. And, they usually had never worked on site.    And they were usually white. 

Fast forward to 2020 and thankfully, this in no longer the case.  There are increasingly more men in on-site manager positions, more women in the senior level executive suite, and more minorities in our industry. I know a woman who became the Director of Maintenance at a major management company this year.   This is a perfect example of diversity and inclusion in our industry.   There are widespread initiatives to attract candidates of all colors, ages, orientations, and disabilities. Casting a wider net for recruitment willcreate a culture where people of all backgrounds can feel comfortable and included.  Inclusivity is the key to maintaining (not just creating) diversity in the workplace. 

There are numerous benefits to embracing workplace diversity and inclusion.  For starters, there will be improved understanding of those you work for, with, and around.  Your workplace will create an environment that allows everyone on the team to reach their full potential – because they are focused on the workthey are doing, not that they feel different.  Having a diverse workforce will provide multiple perspectives to problem solving – guess how?  By seeing issues and solutions through a different lens! This will ultimately increase performance outcomes as well as employee productivity. 

Employee retention is increased when the employee feels valued for their individual gifts and talents; which boosts morale; creating improved customer relations; which reduces complaints.  See the connection? Diversity and inclusion makes good business sense, and it is the right thing to do.

It is vital to your success, to the success of your company, and the success of your teams to embrace diversity and inclusion.  It starts with respect, a willingness to share, risk change, and being open to other’s differences.  We need to recognize the learning opportunities and adopt an attitude of “different is okay, or interesting”. 

 Or we can just try to look at the world through someone else’s lens….

 

Join me at the conference for some tips on how to promote diversity and inclusion, diversity best practices, and how you can promote diversity with your team. 

 

 

 

 

Answer:  Oregon House Bill 4213 prohibits residential evictions (including eviction notices) based on nonpayment of rent and other charges owed to the landlord that became due during the “emergency period.”  HB 4213 specifically defines the “emergency period” as beginning April 1, 2020 and ending on September 30, 2020.

 

Governor Kate Brown’s Executive Order No. 20-56 extended the eviction moratorium through the end of the year until December 31, 2020.  However, like HB 4213, the “nonpayment” period is specifically defined to mean payments that became due to the landlord during the period beginning on April 1, 2020 and ending on the extended date of December 31, 2020.

 

Both HB 4213 and EO 20-56 specificallyset April 1, 2020 as the starting point for the eviction moratorium. Any amounts that were owed before that date to the landlord are therefore notcovered by the eviction moratorium prohibitions.

 

In my opinion, you could lawfully serve a 72-hour rent nonpayment notice on these tenants requiring payment of their rent for January, February and March.  If they failed to pay the full amount due for those months by the 72-hour notice deadline, you could file an eviction case in court.

 

There are (of course) a few caveats. First, you or your attorney would likely need to educate the court with this analysis to allow the case to proceed. Second, you should probably expect an argument from the tenants or their attorney on this issue, but if the court follows the specific language in the regulations, you should prevail.  Third, it is possible the tenants could try to short-circuit the eviction by invoking the federal CDC eviction moratorium that is also on the books, but they would have to submit a sworn declaration stating that, among other things, they are unable to pay rent because they have lost income, employment, or suffered extraordinary medical expenses as a result of COVID-19.  It does not sound like any of these facts fit the couple you have described.

 

Obviously, you should consult with a knowledgeable attorney before you decide to pursue this eviction strategy.  Also be sure to check whether your county or local municipality may have enacted a broader moratorium that might cover the rent amounts due earlier in the year. And finally, you may want to consider simply suing the tenants in small claims court for these rent amounts instead of pursuing a full-blown eviction case.

But the proposal hasn’t received broad support in the Oregon Senate. It’s unclear that Gov. Kate Brown would call a special session to address the matter this month if lawmakers can’t agree on a plan. It’s also uncertain whether the governor would issue an executive order to extend the eviction moratorium into next year if a special session isn’t called.

“I want to see support, frankly, from Democrats and Republicans for the work that needs to be done,” Brown said during a press conference Friday, adding that she hoped to make a decision on whether to call a special session in the next few days. Her office didn’t respond to inquiries about potentially extending the moratorium.

Tenant advocates worry that thousands of Oregon renters could face eviction at the start of the New Year if lawmakers don’t act before the moratorium expires.

Data compiled by Multifamily NW, a rental industry group whose members include landlords and property managers, shows that between 12% and 15% of renters in Oregon have been unable to keep up with their rental payments during the pandemic. A survey conducted by Portland State University researchers found the situation to be considerably worse with 36% of 460 Oregon tenants surveyed reporting they owed back rent.

 

“Time is running out,” said Alison McIntosh, a spokesman for Neighborhood Partnerships, which runs the Oregon Housing Alliance. “With the eviction moratorium set to expire on Dec. 31, we know that renters across the state will be facing evictions very quickly, both in the middle of the worst spike in COVID cases that we’ve seen so far and the middle of winter. That is really concerning to us. We need the legislature to act to solve this problem.”

Brown extended the residential eviction ban through an executive order in September and it is possible that she could take a similar step if lawmakers don’t come to the consensus needed to warrant a special session. But the federal government’s eviction moratorium expires at the end of the year, and some observers believe that might undercut the legal standing of a new order from Brown.

Rep. Julie Fahey, D-Eugene, the chair of the work group who developed the House proposal, said a legislative solution would be better than an executive order because Oregon could pair the moratorium with financial help for landlords.

“I can’t think of a more compelling reason to come into session than to keep people housed during the pandemic,” Fahey said. “We think at least 20,000 Oregonians will be at risk of facing homelessness come Jan. 1 if we let the eviction moratorium expire without further action. There’s a real sense of urgency to take action to address this looming eviction crisis.”

Under the House proposal, renters who can show that they’ve experienced financial hardships since the start of the pandemic could not be evicted for missing rental payments through June 30, but would have to pay back any accumulated rent on July 1. The Legislature would also set aside $100 million in general fund money to go to existing rental assistance programs and a new landlord assistance fund. Landlords would be required to forgive 20% of past-due rent to access the assistance.

Still, lawmakers acknowledge that $100 million wouldn’t be close to meeting the needs of tenants and landlords. The Portland Housing Bureau estimated that Portland renters alone had missed over $120 million in rental payments by the end of September.

Deborah Imse, executive director for Multifamily NW, expressed concerns last month about the viability of the proposal if there wasn’t adequate funding to address the needs of landlords who would be asked to forgo rent for another six months.

In a letter to Brown earlier this month, Multifamily NW called on the state to allocate adequate rental assistance to make up for the losses of housing providers, create a short-term loan program for tenants who can’t pay rent and implement other relief measures for property owners, including property tax relief.

Multifamily NW is also supporting the passage of a separate proposal floated by Sen. Betsy Johnson, D-Scappoose, which would offer tax credits over a five-year period to landlords who forgive past-due rent. Landlords would be allowed to sell credits to other Oregon taxpayers.

“Rather than implementing additional confusing rules that further strain the relationship between housing providers and renters, Oregon should focus efforts on identifying budget resources to make rental assistance available,” said Michael Havlik, deputy executive director for Multifamily NW. “We think a combination of policies that improve emergency rental assistance programs coupled with tax relief measures is the right approach to resolving the state’s moratorium on evictions for nonpayment of rent.”

While Johnson’s proposal does not address the eviction moratorium, she said that landlords wouldn’t have an incentive to evict tenants with her proposal on the table because they would lose out on the opportunity to receive the tax credits.

“The landlord gets something in exchange for having provided services to the tenant without cost during the duration of the state of emergency,” Johnson said. “The tenant gets debt relief and peace of mind knowing there’s no obligation to pay back thousands of dollars of back rent or suffer having their credit destroyed or bankruptcy. Finally, the state is able to accomplish that by use of future as opposed to current revenues.”

Ron Garcia is president-elect of the Rental Housing Alliance, which represents smaller landlords. He said he is concerned Johnson’s proposed tax credits would benefit larger corporations and property management companies while doing little to help smaller landlords struggling now.

Fahey said her work group considered including tax credits in their proposal, but they felt that the credits would put a strain on the state budget down the road if they weren’t capped and they believed they could do more to help smaller landlords by getting them direct financial assistance now.

She said that Johnson’s proposal deserved consideration in the regular session, but that the state needs to address the expiring eviction ban before the end of the year.

Sen. Jeff Golden, D-Ashland, who owns several small rental properties, said it is imperative that legislators act to help both small and large landlords who have forgone rent for up to nine months and said he would consider both proposals on the table. But he also said he could only support a bill that also addressed the expiring eviction moratorium.

“I’m hoping everybody can envision the possible disaster if the moratorium isn’t extended and we can come together to find some way to get there,” Golden said.

Senate Democrats discussed options for renters during a caucus meeting Monday afternoon. Those discussions remained ongoing Tuesday morning. Still, the possibility of Brown calling a mid-month special session remained in doubt.

Shemia Fagan, D-Portland, who will be sworn in as Oregon’s next Secretary of State in January, said she delayed her resignation from the Senate in order to be available for a possible special session. She said Oregonians deserved to hear legislators debate the proposals publicly in a special session this month since any gap in the eviction moratorium and a separate foreclosure moratorium could have severe consequences for Oregon renters and homeowners.

“Oregonians facing eviction, foreclosures and possible homelessness deserve public leaders who will make a decision regarding housing during a global public health crisis,” Fagan said. “Those decisions should be made in public. People can vote how they want to vote, but Oregonians deserve a special session and a Senate caucus that will take a bill to the floor and have the courage in their convictions to vote yes or no on the Senate floor.”

 

Answer.  No. There are many reasons for this answer:

 

The term “rent” is defined in ORS 90.100(37) as “…any payment to be made to the landlord under the rental agreement, periodic or otherwise, in exchange for the right of a tenant and any permitted petto occupy a dwelling unit to the exclusion of others and to use the premises.” Ergo,  rent already includes the tenant’s pet. You cannot charge twice for Fido.

 

Secondly, ORS 90.302 provides that landlords may charge certain “fees”; one of them is for violation of a written pet agreement or of a rule relating to pets in a facility, pursuant to ORS 90.530.

 

Here is a summary of ORS 90.530:

· A landlord may not charge a one-time, monthly or other periodic amount based on the tenant’s possession of a pet; 

· A landlord may provide written rules regarding control, sanitation, number, type and size of pets. 

· The landlord may require the tenant to sign a pet agreement and to provide proof of liability insurance. 

· The landlord may require the tenant to make the landlord a co-insured for the purpose of receiving notice in the case of cancellation of the insurance.

· A landlord may charge a tenant an amount for a violation of a written pet agreement or rules relating to pets not to exceed $50 for each violation

 

Landlords may also charge tenants a security deposit for their pets. See, ORS 90.300. However, alandlord may notcharge a tenant a pet security deposit for keeping a service animal or companion animal that a tenant with a disability requires as a reasonable accommodation under fair housing laws.

 

So, while landlords may not charge a separate amount for “pet rent”, the Oregon Legislature has built in several protections for landlords where their tenant(s) have pets.  

 

 

 

MHCO Editor's Note:  This summary is extensive with a lot of information.  A PDF copy of the same summary as below is attached above (the attached pdf version may be a more appropriate format) along with five new or revised MHCO forms that will be necessary for your to use for non payment of rent evictions.  These forms are not 'fillable' and can only be found on this web site attached to this article.  As we move through the COVID-19 crisis MHCO will likely be updating and revising these forms - please use the forms on the MHCO web site for the most current.  Thank you for your patience.

 

By Phillip C. Querin, MHCO Legal Counsel

Background. HB 4401 was signed by the Governor on December 23, 2020. It was the product of the Oregon Legislatures Third Special Session. 

 

Ostensibly, this was to be an extension of the current eviction moratorium that was scheduled to expire on Jan. 1. The new moratorium will now expire on July 1, 2021. However, if an extension was all the legislators sought to accomplish, they exceeded their own stated expectations. Actually, they had to deal also with HB 4213, which was the product of 2020’s First Special Session. 

In response to Covid-19 related financial hardships, the Oregon government passed HB 4213 in mid-2020. The bill prohibited evictions for nonpayment of rents, charges, and fees and no-cause evictions throughout a defined “Emergency Period.” The Emergency Period originally ran from April 1, 2020 to September 30, 2020. 

 

HB 4213 further established an additional six-month elective “Grace Period” during which the tenant could arrange to pay back their accrued rent arrearages. The tenant was required to pay back their outstanding rents, charges, and fees at the end of the Emergency Period unlessthey notified their landlord that they intended to use the additional six months.  The Grace Period originally began at the end of the Emergency Period and ran until March 31, 2020. Landlords were prohibited from filing nonpayment and no-cause evictions based on unpaid rent accrued during the Emergency Period. 

 

All rents, charges, and fees accruing outside of the Emergency Period still must be paid as agreed under the rental or lease agreements. For-cause evictions were always still available to landlords.

 

On September 28, 2020, in recognition that Covid-19 hardships were still continuing, Governor Brown issued Executive Order 20-56 which extended the Emergency Period and corresponding prohibition on no-cause and nonpayment residential evictions to December 31, 2020. The executive order did notextend the Grace Period – all back rents, charges and fees accrued between April 1, 2020 and December 31, 2020 were still due on or before March 31, 2020.

 

Unfortunately, what occurs when (a) drafters are rushed, and (b) their work product is not subject to any review or amendment, as was the case with HB 4401, the result is a bill that creates more questions than answers. While it purports to provide funding for landlords who have suffered as a result of the many Executive Orders and makeshift legislation such as HB 4312, the reality is not promising. Why? Because the success of the bill still requires the Oregon Legislature to put some money where its mouthlegislation is – the program must still be funded, and HB 4401 did nothing to address that issue.  

 

 

Oregon House Bill 4401.This bill was passed December 21, 2020, and signed by the Governor on December 23, 2020. It accomplished two major objectives[1]:

1) Directing the Oregon Housing and Community Services Department to implement a program for direct aid to landlords reimbursing a percentage of outstanding rents; and 

2) Modifying the Emergency Period and Grace Period created under HB 4213 for tenants who claim financial hardship. 

 

The Program.  HB 4401 authorizes the Oregon Housing and Community Services Department (“OHCS”) to pay residential landlords 80% of unpaid rents due after April 1, 2020 and up to the date of the application, for certain qualified tenants. 

 

Landlords,[2]or their designees, must apply to OHCS to qualify for distributions for tenants who: 

1. Have not paid rent, and
2. Have submitted a signed Hardship Declaration Form. (OHCS is directed to expedite implementation of the landlord compensation fund but the exact look and function of the program is unknown as of the writing of this summary.)

 

OHCS will develop an online application system to handle reimbursement requests. The application and related forms will be available in English, and translated for non-English speakers as well.[3]The program will also have more than one application period to assure broader reach and eligibility. It is unclear at this time how many application periods will be available. Landlords should be eligible to apply more than once, state funds allowing, if unpaid rents and fees continue to accumulate after the first application and distribution. 

 

Landlord application. It will require, at a minimum:

1. A copy of the tenants’ Hardship Declaration Forms;
2. A description of the unpaid rent for all current tenants;
3. An agreement to forgive the remaining 20% of unpaid rent for  tenants accrued between April 1, 2020 and the date of the application;
4. An agreement that, should the landlord receive from the tenant, or on the tenant’s behalf, any portion of the unpaid rent (forgiven or paid through the distribution) within a certain window specified by OHCS, that they will repay OHCS;;
5. An agreement that the landlord is not seeking reimbursement for rents due from immediate family members;[4]
6. An agreement that while the application for reimbursement is pending, the Landlord will not terminate[5]a tenant without cause or for non-payment;[6]
7. Any other information or requested by OHCS in the application;

 

In order to reach landlords who are struggling the most (i.e. fewer rentable units or a higher percentage of outstanding rents) OHCS may establish qualifications, priorities, restrictions or limits on distributions, which may include:

1. Limits per tenant, per landlord, or per time period; 
2. The number of units a landlord must own; or 
3. The percentage of total rent unpaid.

 

OHCS may coordinate with the local housing authority to administer the rules and distribute the reimbursement funds. Either OHCS or the appropriate housing authority will notify tenants of the distribution to the landlord on their behalf and the agreed-upon amount of forgiveness to which they are entitled. OHCS may also conduct outreach to landlords and tenants, including non-English speaking parties.

 

Eviction Moratorium Extension. The Landlord distribution program provisions are set to automatically repeal on January 2, 2023. 

Forms.

 

Emergency Period and Grace Period Extensions.  For all renters, the Emergency Period (until December 31, 2020)[7]and Grace Period (through March 31, 2021) as defined in HB 4213 remain unchanged, unless:

 

1. The landlord fails to provide a Notice of Eviction Protection (see MHCO Form 111 below); and
2. The landlord fails to provide tenant with a Tenant’s Hardship Declaration Form (see  MHCO Form 110 below); together with
   1. AnynoticegivenunderSection3(5)(c),chapter13,OregonLaws2020(firstspecial session) (Enrolled House Bill4213);[8]and
   2. Everyterminationnoticefornonpayment of rentdeliveredbeforeJune30,2021;and

c. Anysummonsforevictionbasedonaterminationnoticefornonpayment  delivered before June 30, 2021;

 

---OR---

3. Tenant fills out and returns the Hardship Declaration Form asserting financial hardship.

 

Afteratenantdeliversacopyofthe Hardship Declarationto the Landlord,theEmergencyPeriodandendoftheGracePeriodareextendedtoJune 30,2021. During that time, the landlordmaynot takeorattempttotakeanyactiontointerferewithatenant’spossession.

 

The Hardship Declaration Form. It may be submitted to the landlord at any time, up to and including the first appearance in an action to recover possession. Delivery of the Hardship Declaration Form may result in dismissal of no-cause or nonpayment eviction proceedings during the Emergency Period and Grace Period.

 

Landlords may not: 

1. Challenge the accuracy of a tenant’s Hardship Declaration in an eviction proceeding;
2. Require additional information beyond what is required by the Hardship Declaration Form; 
3. Demand more than one copy of the Hardship Declaration per household or tenancy; 
4. Prohibit the tenant from submitting a Hardship Declaration in a language other than English if the tenant is using an approved translated form from the courts; 
5. Prohibit the tenant from submitting the Hardship Declaration to the landlord in any manner, format or means available, including but not limited to, a photograph of the document submitted by email or text message.

 

Evictions During the Emergency and Grace Periods.  Only the following landlord evictions are permitted during either of these two periods:

1. Evictions for violation of a rental agreement, other than non-payment may continue;
2. Evictions for nonpayment occurring before April 1, 2020 may also continue;
3.  “Landlord-cause” evictions[9]are allowed after the first year of occupancy. Landlord cause evictions include:

1. Demolition or converting dwelling unit to non-residential use;
2. Intent to make repairs/renovations to the dwelling unit within a reasonable time, and the building is unsafe/unfit or occupancy or will be unsafe/unfit for occupancy during the repair/renovation period; 
3. Landlord intends for immediate family member to occupy dwelling unit as a primary residence and no comparable units at the same location are available; or 
4. Landlord has accepted an offer to purchase the dwelling unit; purchaser will use unit as a primary residence.[10]

 

Important Changes to Landlord Nonpayment of Rent Notices.  The 72-hour nonpayment of rent notice under ORS 90.394 is now a 10-day notice ending at 11:59 pm. The 144-hour nonpayment of rent notice is now a 13-day notice ending at 11:59 pm. These changes expire July 1, 2021.[11]

 

Tenant Relief for Landlord Violations.  Any violation of the above rules may result in the tenant being granted an injunction to recover possession or address any other violations, and the award of the equivalent of three-months rent on top of any actual damages. Landlord’s violation of the above rules will also give the tenant a defense to an eviction. In addition, tenant will be entitled to prevailing party fees, attorney fees or costs and disbursements unlessthe landlord can demonstrate:

1. That they delivered the required Notice of Eviction Protection and Hardship Declaration Form;
2. That they did not know or have reason to know at the time they filed the action that the Hardship Declaration Form had been completed and returned; and
3. That they promptly dismissed the action upon learning of the existence of the completed forms.

Summons and Complaint Forms: Note: Changes resulting from the Eviction Moratorium laws, and HB 4401’s changes to Landlord-Tenant statutory language are reflected in the  Summons and Complaint forms for residential evictions.[12]Summons and Complaint revert to the standard language on July 1, 2021.

 

Expiration. Under the terms of HB 4401 the provisions related to the eviction moratorium will automatically repeal on July 1, 2021.

 

Miscellaneous Provisions and Changes to HB 4213. 

1. A landlord may apply a last month’s rent or security deposit to the Nonpayment Balance if a tenancy terminates prior to the end of the relevant Grace Period;
2. Tenants with a Nonpayment of Rent Balance who are still within their Grace Period are not considered to be in default;
3. A landlord may accept partial payment of rents, charges and fees during the Grace Period. It does not constitute a waiver of the landlord’s right to terminate a tenancy for cause; nor to terminate a tenancy for nonpayment after the expiration of the relevant Grace Period;
4. Amendments to HB 4213 expire on September 1, 2021;
5. For all  Nonpayment evictions, the statute of limitations is tolled and does not begin to run against the Nonpayment claim until July 1, 2021. 

 

Unanswered questions.  In no particular order, here are some questions about HB 4401 that are sure to arise:

• What happens if landlord sends the Hardship Declaration to a tenant, who does not respond?
• Since landlords need the tenant’s Hardship Declaration to complete their application for 80% of their unpaid rent, is the landlord stymied?
• While the landlord will be able to file for eviction after the Grace Period ends under the old law (March 31, 2021), HB 4401 is clear that the tenant can submit the Hardship Declaration as late as the first appearance at the FED, and bring the proceeding to a halt.
• So it’s a bit of a guessing game what tenants will do; ignore the landlord’s Notice of Eviction Protection until an FED is filed, or cooperate with the landlord and sign and return the Declaration? What incentive do tenants have to cooperate, if they can wait until the last minute to submit the Hardship Declaration?  
• In any event, no action can be taken against the tenant who does not cooperate until after March 31, 2021 at the earliest. 
• Since the Legislature has no landlord reimbursement program in place yet, one has to wonder when, and if, it will be of any help now.
• There is no question that the landlord funding will eventually be exhausted, and some will be left out. 
• So, the take-away right now is that landlords should immediatelyreach out to their tenants in arrears, get their Hardship Declarations signed, so the application for reimbursement can be processed as soon as possible. 80% of unpaid rent is better than nothing - which is what could occur if the application is delayed. 

Ø Tenants do benefit by their cooperation, since when the moratorium is extended, they are not at risk of any eviction action until after July 1, 2021.  This is the message landlords need to get out to their tenants.

• Otherwise, a landlord may bring an evictionfornonpaymentofrent,chargesandfeesaccruedfrom April1,2020,toDecember31,2020 immediately after March31,2021. Perhaps this also should be part of the landlord’s message.

 

[1]The bill also made a few additional changes to Oregon Landlord-Tenant statutes which will be addressed below

[2]“Landlord,” for the purposes HB 4401, includes a manufactured dwelling park nonprofit cooperative.

[3]The bill does not specify which non-English languages OHCS must provide, but specifies later that the Oregon Judicial Department provide translated forms (including the Hardship Declaration Form) in Spanish, Korean, Russian, Vietnamese, and Chinese.

[4]Landlord may not seek reimbursement for any tenants that are immediate family members. For the purposes of this law “immediate family” means: a) an adult person related to the landlord by blood, adoption, marriage or domestic partnership; b)an unmarried parent of a joint child; c) a child, grandchild, foster child, ward or guardian of the landlord; or d) child, grandchild, foster child, ward or guardian of any person listed in (a) or (b). (“immediate family” definition from ORS 90.427)

[5]“Termination notice without cause” means a notice delivered by a landlord under ORS 90.427 (3)(b), (4)(b) or (c), (5)(a) to (c), or (8)(a)(B) or (b)(B) (HB 4213)

[6]“Nonpayment” means the nonpayment of a payment that becomes due during the Emergency Period to a landlord, including a payment of rent, late charges, utility or service charges or any other charge or fee as described in the rental agreement or ORS 90.140, 90.302, 90.315, 90.392, 90.394, 90.560, or 90.630. (HB 4213)

[7]Emergency Period Extended to December 31, 2020 by Executive Order 20-56; confirmed in HB 4401 Section 8 (Amendment to Section 3, Chapter 13, Oregon Laws 2020 (first special session )(Enrolled House Bill 4213))

[8]Under the original version of HB 4213, there is no Section3(5)(c). To find the required contents of the voluntary notice referred to in 2) a., one must look to the new HB 4401 Section 8 and follow the amended language. 

[9]See, ORS 90.427(5)(a)-(d).

[10]Note: This does not include listing or marketing the home for sale. Seller/landlord would have to have a pre-arranged buyer who was willing to buy without inspections, etc., or a tenant who was willing to permit the same with 24-hour notice. Of course, seller/landlord could always make financial arrangements with tenant for concessions.

[11]Amendments to 90.394 (2)(a) and (b). These changes from hour-notices to day-notices affect several other statutes that refer to 90.394. Changes revert to original language on July 1, 2021.

[12]For summons language: see ORS 105.113 (as amended by HB 4401 Section 13); for complaint form: ORS 105.124 (as amended by HB 4401 Section 15)