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Answer:  To clarify, when you refer to the “Moratorium” you are referring to HB 4401 which was signed by the Governor on December 23, 2020. It did two things: 

• Directed the Oregon Housing and Community Services Department to implement a program for direct aid to landlords reimbursing a percentage of outstanding rents; and 
• Modified the Emergency Period and Grace Period created under HB 4213 for tenants who claim financial hardship. 

Your question about the Hardship Declaration refers to what happens if the tenant delivers it to the landlord:  Afteratenantdeliversacopyofthe Hardship Declarationto the Landlord,theEmergencyPeriod andendoftheGracePeriodcreated in earlier legislation areextendedto June 30,2021. The Hardship Declaration can be filed by the tenant as late as the first appearance date after you file for eviction. After the filing, the landlordmaynot takeorattempttotakeanyactiontointerferewithatenant’spossession, subject to the following exceptions:

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

• Demolition or converting dwelling unit to non-residential use;
• 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; 
• 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 
• Landlord has accepted an offer to purchase the dwelling unit; purchaser will use unit as a primary residence.[2]

Since the rents due to you under the Stipulated Judgment arose before April 1, 2020, I interpret your question to asked whether you can pursue them by filing an Affidavit of Noncompliance under ORS 105.146.  

Normally, I might give you a cautious green light. But in this environment, I must recommend against it. First, the court could ignore the above exception under HB 4401. Secondly, and more importantly, the Center for Disease Control and Prevention (“CDC”) has issued a blanket moratorium on nonpayment of rent evictions which arguably supersedes the exception under HB 4401. It was updated today. See details, here.

Bottom line, I would not attempt to enforce what we all agree was a legitimate stipulated judgment at the time. HB 4401 is supposed to end June 30, 2021. But until the CDC moratorium ends, I would follow it, regardless of Oregon law. 

And even though I do not believe the original CDC moratorium was intended to apply to rents due before September 2020, my brief reading of the federal law, including the update, suggests that if the eviction has not been completed– and yours has not because of the stipulated judgment – the filing of the Affidavit of Noncompliance could be interpreted as an attempt to evict in violation of the current CDC moratorium. 

Rule #1: Don’t Discriminate Based on Race or Color

The FHA bans discrimination based on both race and color, two separate but closely related characteristics. In general, race refers to a person’s physical appearance and color refers to a characteristic of a person’s race, so discrimination claims based on color are often coupled with claims based on race.

Rule #2: Don’t Discriminate Based on National Origin

The FHA prohibits discrimination based on national origin, which means the geographic area in which a person was born or from which his or her ancestors came. National origin discrimination means treating people differently because they or their family are from outside the United States, or because they have physical, cultural, or linguistic characteristics of persons from a foreign geographic area.

Rule #3: Don’t Discriminate Based on Religion

The FHA prohibits discrimination based on religion, so it’s unlawful to refuse to rent to people, or to treat them differently, because of their religion. For example, it’s unlawful to show favoritism toward applicants who share your religious beliefs—or bias against—those of other religious faiths.

Rule #4: Don’t Discriminate Against Families with Children

Fair housing law prohibits discrimination because of familial status, which the FHA defines to mean households with one or more children who are under 18 years of age, where the child is living with: a parent: a person who has legal custody (such as a guardian); or a person who has the written permission of the parent or legal custodian to care for the child.

Rule #5: Don’t Discriminate Based on Sex

Under the FHA, it is unlawful to discriminate against applicants based on their sex. Making decisions about whether to accept or reject applicants based on their sex can lead to costly fair housing litigation, particularly when combined with allegations of discrimination based on familial status or other protected characteristics. 

Rule #6: Don’t Discriminate Based on Disability

The FHA prohibits discrimination based on disability. Under fair housing law, disability means a physical or mental impairment that substantially limits one or more major life activities. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses.

Rule #7: Carefully Consider Reasonable Accommodation and Modification Requests

Under the FHA, it’s unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing. In general, communities are required to make an exception to the rules, when requested, if it’s both reasonable and necessary to allow an individual with a disability to fully use and enjoy the community. 

Rule #8: Abide by Rules Banning Discriminatory Advertising

Under the FHA, it’s unlawful to advertise or make any statement that indicates a limitation or preference based on race, color, religion, national origin, sex, disability, or familial status. Liability for making discriminatory statements doesn’t require proof of discriminatory intent. Instead, the focus is on whether the statement would suggest a preference to an "ordinary reader or listener." The rules apply not only to verbal and written statements, but also to all advertising media, including newspapers, magazines, television, radio, and the Internet.

Rule #9: Watch Out for Potential Retaliation Claims

Under the FHA, it’s unlawful to "coerce, intimidate, threaten, or interfere with" anyone who has exercised a fair housing right—or anyone who assisted others in exercising that right. Because discrimination and retaliation are separate violations under fair housing law, you could face liability for retaliation if you take adverse action against a resident solely because he filed a discrimination complaint against you—even if the discrimination claim is ultimately dismissed.

Rule #10: Abide by Applicable State and Local Fair Housing Laws

To avoid fair housing trouble, it’s important to comply with not only the FHA, but also applicable state or local fair housing laws. Often, these state and local laws extend fair housing protections beyond federal requirements to ban discrimination based on: Marital status; Age; Sexual orientation and gender identity; Source of income; Military status; or Other protected classes.

Answers:  One caveat: The answers below are based upon some quick basic research and should not be relied upon as a complete legal answer to a complicated issue. You should verify the information with your own legal counsel.

1. Is it illegal to require an SSN on a rental application?  No, it is not illegal to “require” an SSN on a rental application provided every application requires an SSN. Only requiring SSNs from certain applicants likely would run afoul of Fair Housing Laws if the group requested may be a protected class. The take-away is (as I have said repeatedly in the past) if you are going to require it, you must require it of everyone, regardless of protected class.  You cannot pick and choose who must provide their SSN number. 

2. Is it a violation of the Fair Housing Laws to deny an applicant because they do not have an SSN?  This is a grey area. While it is not explicitly illegal to deny an applicant because they do not possess an SSN, if denials seem to only occur to certain groups of people, it could trigger a Fair Housing complaint. 

The Fair Housing Act prohibits discrimination against certain protected classes, one of which is national origin. The Fair Housing Council of Oregon (FHCO) encourages landlords to consider documentation other than SSNs, if possible:

“It is our agency’s position that the refusal to review alternative documentation when a Social Security Number is not available will have a negative and disparate impact[1]on individuals whose national origin is not the United States, thereby having a disparate impact on that protected class.” 

A disparate impact may arise when negative outcomes affect a particular protected class, even though they are not a product of explicit discriminatory intent. A recent example cited by the FHCO was an apartment complex in Beaverton which prohibited the cooking of curry on the premises. The prohibition was arguably without specific discriminatory intent because it was based on the difficulty of reliably cleaning apartments where curry had been frequently cooked (it was compared to the impact of tobacco smoke). However, because only certain groups of people, mostly Indian, were likely to cook curry with any frequency in their homes, the rule had a discriminatory impact on people of a particular national origin.[2]

FHCO advocates that landlords consider accepting alternate forms of identification (e.g., ITIN) if they, or their screening companies, can obtain similar, reliable information regarding rental risk as they would be able to with an SSN. This may take the form of asking for more assurances from a potential renter, including references to former landlords to show rental history, utility bills to show timely payments, etc. The FHCO also acknowledges that additional screening steps to compensate for a lack of SSN may have an increased cost, and that increased cost may be passed on to the applicant. [Query: But doesn’t that, in itself, create a disparate impact?! ~PCQ]

Although an ITIN cannot be used in place of an SSN for pulling a credit report, however, people with ITINs can build and maintain credit. Credit bureaus may be able to provide a report based on other identifying information (name, date of birth, employment history) however it may not be as accurate as one tied to an SSN, or the credit bureau may not reliably be able to pull together information for a full credit report without the SSN. It appears that methods of pulling a credit report online will not allow an ITIN to be used, but a consumer may write to the credit bureaus and attempt to pull their own credit report with their other identifying information. FHCO admits that at this time tenant screening companies likely cannot gather credit information without an SSN.

In short, currently it is not explicitly illegal to require an SSN for a rental application, nor is it explicitly illegal to deny an applicant because they do not have an SSN. However, a landlord may expose themselves to potential FHA liability if their facially neutral rules end up having an unintended (i.e., “disparate “) impact on a particular identifiable group (i.e., a “protected class”). 

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Oregon’s BOLI states that while you do have the right to select the tenants you want, refusals:

“…to rent cannot be based on a protected class. The protected classes include race/color, religion, sex, physical or mental disability, marital status, national origin, and familial status. All applicants must be given the same rental requirements and judged by the same standards.”[3]

Specifically, regarding Social Security Numbers, the FHCO suggests not outright denying for lack of SSN, but instead saying: “show me what you can” and then seeing if the documentation provided and the information that can be gleaned by the screening company is sufficient to give the landlord enough data to accept or deny an application.

For more information:

• http://fhco.org/index.php/discrimination-in-oregon/protected-classes/national-origin/screening-options

• https://www.multifamilypro.com/playing-the-numbers…a-fair-housing-gamble/

3. Can you use an SSN for identification?  Social Security Cards are commonly used as one of a two-piece identification program. For example, the Oregon State ID and Driver’s License program accepts it as a primary document (provided you also have a document showing your date of birth)[4], along with other forms of identity like Passports and Driver’s Licenses. 

The concern with Social Security Cards is that they do not have enough identifying information to be useful as a single or primary method of ID (e.g., a photo, a date of birth, other data that corroborates that it correctly identifies the holder). If it is one of two pieces of information, that does not appear to be a problem. FHCO provides a list of alternative documents that a prospective renter might produce, and a landlord may consider accepting.

Answer:   First, there is nothing in the Oregon Residential landlord-tenant law directly on point. Nor would I expected there to be, any more than a law prohibiting residents from intentionally defacing community property. It just goes without saying.

Looking for a remedial statute for recourse, however, is not difficult.  

Check your community rules to see what they say. While I would not expect there to be a direct prohibition against wasting water, there very well be something that comes close to the point.[1]  If there is some provision in your rules that you can point to, then you could use a 30-day notice of termination under ORS 90.630.  

However, I’m not sure you want to permit the resident 30 days to cure. Under these circumstances, you might want to resort to the non-curable 24-hour notice statute, ORS 90.396(1)(f), for outrageous conduct.  While it is true that landlords and managers should not use the 24-hour notice if a 30-day curable notice would suffice. Accordingly, I would suggest that before resorting to the 24-hour statute, you “paper your file” by giving him a written warning notice, say seven days in advance, telling him what you will do if he does not stop. If he continues to flagrantly waste the community water, then file the 24 hour notice and let the judge decide.  I suspect he or she will come down on your side of the issue.  

Also, keep in mind that if you are forced to issue the 24-hour notice and go to court, at the first appearance, the court will encourage both parties to resolve the matter.  In this situation, if the resident agrees to stop wasting water, then have him enter into a Stipulated Judgment of Restitution (which is prepared by the judge at the time of the first appearance), which would give you the ability to go back  to court quickly (without having to file again), to evict should he violate the agreement. 

There are other statutes that come into play here, although their violation would only give you a right to issue a 30-day curable notice of termination:  

· ORS 90.740(3)(Tenant Obligations)provides that a tenant shall:“Behave, and require persons on the premises with the consent of the tenant to behave, in compliance with the rental agreement and with any laws or ordinances that relate to the tenant’s behavior as a tenant.”

While this provision requires you to look elsewhere (e.g. the rental agreement, laws, rules and ordinances), I suspect checking with your local water bureau, you will find certain water conservation rules and regulations that prohibit intentional waste of public water.

· ORS 90.740(4)(a)(Tenant obligations) also provides that a tenant shall: “Use the rented space and the facility common areas in a reasonable manner considering the purposes for which they were designed and intended;”

Again, this provision is not directly on point, I think we can agree that that intentional waste of water is not a “reasonable” use of the rented space. Moreover, ORS 90.130(Obligation of good faith) helps out here, since it clarifies that “Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement.”

We’ll explain the current state of the fair housing law governing whether landlords can be liable for tenant-on-tenant harassment. We’ll outline the seven things you can do to manage these liability risks, and we’ll give you a tool, a Model Anti-Harassment Policy for Tenants, that you can use to implement these measures. We’ll finish the lesson with a Coach’s Quiz so you can see how well you learned the material.   

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans housing discrimination on the basis of race, color, religion, sex, national origin, familial status, and handicap (disability). The FHA doesn’t specifically use the word “harassment.” But it’s well established that harassment is a form of illegal discrimination banned by general provisions of the law, including:

• Section 3604(b), which makes it illegal to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, on in the provision of services or facilities in connection therewith”; and
• Section 3617, which makes it illegal to “coerce, intimidate, threaten, or interfere” with those who exercise their fair housing rights.

These provisions enable courts to hold landlords liable for the harassment they commit personally. But establishing landlord liability gets trickier when the harassment is committed by a third party.

What’s the basis for holding landlords liable for third-party harassment? Historically, the theory is based on comparing housing discrimination banned by the FHA, a.k.a. Title VIII of the federal Civil Rights Act, to employment discrimination banned by Title VII. The employer’s Title VII duty to protect employees from workplace harassment applies not only to their own conduct but also to that of managers, supervisors, and employees under their control. Over the years, the U.S. Department of Housing and Urban Development (HUD), courts, and fair housing tribunals have looked to Title VII for guidance in interpreting Title VIII as making landlords and other housing providers liable for harassment committed by managers, leasing agents, and other third parties under their control.

But using the Title VII comparison to hold landlords liable for harassment committed by tenantstakes a bigger leap of faith. After all, landlords don’t control their tenants the way employers control their employees. To get around this hurdle, HUD, courts, and tribunals have relied on the tort law standard of negligence to argue that landlords have a duty to prevent harassment that they know or should reasonably know about. Even though landlords don’t control tenants, they are in a position to take measures to prevent them from harassing other tenants.

The 2016 HUD Regulations

On Sept. 14, 2016, HUD took the first steps to turn what had previously been just a theory into an actionable legal principle by publishing new regulations holding housing providers responsible for failing to “take prompt action to correct and end a discriminatory housing practice by a third-party, where the [provider] knew or should have known” of the conduct and “had the power to correct it.”

Using the Title VII employment analogy, the regulations (entitled “Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act”) state that landlords can be liable for a “hostile housing environment” the way employers are for a “hostile work environment.”

The regulations define hostile environment harassment as unwelcome conduct that’s “sufficiently severe or pervasive as to interfere with. . . the [tenant’s] use or enjoyment of a dwelling.” Determination of whether hostile environment harassment exists is based on an objective, rather than subjective standard—that is, from the perspective of a reasonable person in the tenant’s position, as opposed to how the tenant actually experienced it. Key factors in the determination include:  

• The nature of the conduct;
• Where it took place;
• How often it took place (although a single incident may be enough if the conduct is egregious enough); and
• The relationship between the alleged harasser and the victim.

The Courts

Less than five months after their publication, the HUD regulations were relegated to the mothballs by the new Trump administration. As a result, the spotlight passed to the courts. There have been two significant federal court rulings on landlord liability for tenant-on-tenant harassment, one going for and the other against the landlord.

Landlord Is Liable: The Wetzel Case. Already grieving from the loss of her lover of 30 years to cancer, Marsha Wetzel’s life became a living hell once she moved into her Illinois retirement community. For 15 months, neighboring tenants regaled her with obscenity and verbal abuse because of her sexuality. They called her a “f***** d***” and a “lesbian f*****.” They harassed her physically, once knocking her off her motor scooter. Wetzel complained repeatedly to the landlord. But instead of stepping in to rein in the harassment, management labeled her a troublemaker and plotted her eviction.

Wetzel sued, but the federal court said that landlords aren’t responsible for tenant-on-tenant harassment under the FHA and tossed the case. In a landmark ruling, the Seventh Circuit Court of Appeals reversed, finding that she had a valid FHA claim for hostile environment harassment. To prove such a claim, a tenant must prove three things, the court reasoned:

1. The tenant suffered harassment based on a protected characteristic (in Wetzel’s case, her sexual orientation);
2. The harassment was severe or pervasive enough to interfere with her tenancy; and
3. The landlord knew about the harassment but didn’t take steps to stop it.

Although the decision tracks the HUD regulations, there’s one crucial difference: Unlike the regulations that hold landlords accountable for harassment they know or should reasonably know about, the court ruled that a landlord must have actual notice of the harassment, which the landlord in this case did [Wetzel v. Glen St. Andrew Living Community, LLC, 901 F.3d 856 (7th Cir. 2018)].

Landlord Is Not Liable: The Francis Case. A case from New York had similar facts but a totally different outcome. Like Wetzel, the New York tenant in this case was the target of “a brazen and relentless campaign of racial harassment, abuse, and threats” authored by his neighbor. And like Wetzel, his appeals for help from the landlord fell on deaf ears.

But that’s where the similarities ended. Unlike the Seventh Circuit, the Second Circuit Court of Appeals ruled, 7 to 5, that landlords can’t be liable for tenant-on-tenant harassment, even if they know it’s taking place, because they don’t exercise control over tenants’ behavior. To rule otherwise, the majority reasoned, would force landlords to intervene in a wide range of common disputes between neighbors [Francis v. Kings Park Manor, Inc., 2021 U.S. App. LEXIS 8761, __ F.3d __, 2021 WL 1137441].

The Bottom Line. The question of whether landlords have a fair housing duty to protect tenants from harassment based on race, color, religion, sex, national origin, familial status, and handicap (disability) and additional protected characteristics under state laws, remains unresolved at this time—other than in the Seventh Circuit, where such a duty does exist and the Second Circuit where it doesn’t. But there are nine other circuits that haven’t yet addressed the issue. Meanwhile, the new administration is very likely to adopt the 2016 HUD regulations authored while President Biden served as Vice President (although HUD hasn’t yet officially addressed the issue).

Key question: What, if anything, should you do to prevent tenants from harassing other tenants?

Answer: Take action. Keep in mind that while the current law may be unsettled, for landlords there’s much more at stake than what the law requires. Ensuring a harassment-free housing environment where residents don’t harass their neighbors is not only a moral but a business imperative, at least for landlords who care about the quality of their tenants’ lives. This is true for all forms of tenant-on-tenant harassment, not just harassment based on personal characteristics protected under fair housing laws. And, contrary to what the Francis court says, this anti-harassment imperative is one that landlords can achieve without having to constantly meddle in tenants’ private affairs and squabbles between neighbors.

7 THINGS TO INCLUDE

IN YOUR ANTI-HARASSMENT POLICY FOR RESIDENTS

Preventing tenant-on-tenant harassment in housing requires the same approach as preventing employee-on-employee harassment in the workplace. The starting point is to create and implement a written anti-harassment policy for the residents of your community. Like our Model Policy: Adopt Anti-Harassment Policy, Procedure & Guidelines for Tenants, your policy should include seven elements.

Element #1: Anti-Harassment Policy Statement

Start by drawing a line in the sand on harassment. State that, as landlord, you’re committed to providing a harassment-free housing environment enabling all tenants are to enjoy their tenancy. Make it clear that harassment is unacceptable and that you’ll follow a “zero tolerance” approach if anybody at the community engages in it [Policy, Sec. 1].

Element #2: Clear Definition of ‘Harassment’

Just about any kind of unpleasant or unwelcome conduct or treatment can be interpreted as “harassment” the way that word is used in everyday language. But in the fair housing context, “harassment” has a much narrower meaning. It’s important that tenants understand what harassment is so they can regulate their conduct accordingly. Specifically, define “harassment” as “action, conduct, or comment that can reasonably be expected to cause offense, humiliation, or other physical or psychological injury or illness to a tenant or other person.” And be sure to list examples. Equally important, explain what does not constitute harassment—namely, honest, good faith, and respectful disagreements—so tenants don’t “cry wolf” and make unjustified accusations any time they get into an argument with their neighbors.

Strategic Pointer: The Model Policy definition closely tracks HUD regulations in the sense that conduct must be severe or pervasive enough to create a hostile housing environment. But recognize that discrimination comes into play only when harassment is based on a person’s race, color, national origin, religion, sex, disability, familial status, or other protected class(es) under your state’s fair housing laws. Still, your enemy isn’t just discriminatory harassment but harassment of any kind. Accordingly, your definition should use the phrase “including but not limited to” so that your policy applies to any and all forms of harassment and not just discriminatory harassment [Policy, Sec. 3] .

Element #3: Harassment Reporting Protocols

Now we come to the hard part. Having established the general principles, the balance of your policy should be dedicated to what happens if harassment actually occurs. Since you can’t do anything unless you know about the harassment, the starting point is getting tenants to come forward to report the harassment they suffer or witness. That’s easier said than done.

First Choice: The best outcome is for tenants to settle the issue civilly between themselves without your having to intervene. So, start by suggesting that tenants who feel like they’re being harassed by a neighbor approach the person with their concerns and ask him or her to stop. “Many, if not most disputes between neighbors are the product not of harassment but simple miscommunication or misunderstanding that can be resolved by respectful conversation,” notes a New York fair housing attorney.

Fallback: Harassment victims may not feel comfortable or safe confronting the person who’s harassing them; or they may try the approach and find it ineffective. That’s why you also need to give them a way to summon help from their landlord. Let tenants know that they not only can but are “strongly encouraged” to go to you and report the harassment they experience or witness. Best Practice: Provide not only a contact person but also an alternate off-site person or office to whom tenants can report harassment in case the primary contact is the one who committed (or was otherwise involved in) the alleged harassment.

Safety Net: You also need to tell tenants to call 911, the police, or other emergency responder for help in an emergency, such as where the harassment poses a threat of violence or immediate bodily harm [Policy, Sec. 4].

Element #4: Assurance of Non-Retaliation

Tenants may be hesitant to come forward and report harassment out of fears of retaliation and being labeled a troublemaker—especially when the alleged harasser is a property manager or a powerful, longstanding, or influential tenant. And, while such retaliation is highly illegal, it still happens. Just ask Marsha Wetzel, the tenant that management plotted to get rid of after she complained of harassment. Of course, you’d never let this happen at your community. The problem is that fear and perception may be stronger than reality. That’s why your policy should include clear and strong language (which our Model Policy boldfaces) assuring tenants that they won’t suffer any form of retaliation for reporting harassment [Policy, Sec. 5].

TIME OUT!

Something to Consider: Qualified Retaliation Assurance

Some landlords worry that tenants will abuse their reporting rights to engage in witch hunts or file reports they know are false to harass or carry out a vendetta against tenants they don’t like. One thing you can do to prevent this is to qualify your non-retaliation assurance by indicating that it applies to harassment that tenants report “in good faith.” Because the language is so important to an anti-harassment policy, we chose to leave this qualifying phrase out of our Model Policy.

Don’t punish the victim. Evicting or relocating a tenant for reporting discriminatory harassment is illegal retaliation even when you do it for the tenant’s own protection. Your duty under fair housing laws, in other words, is to protect tenants from harassment without taking away their right to decide where they want to live.

Element #5: Harassment Response & Resolution Protocols

Be aware that in establishing a protocol for tenants to report harassment, you may be taking on additional compliance responsibilities. Explanation: Remember that for a landlord to be liable for tenant-on-tenant harassment, two things must be true:

• The landlord must know about the harassment (this is the Wetzel standard—the HUD regulations go farther by making landlords liable for harassment they should reasonably know about); and
• They must have the power to correct the problem.

The Wetzel standard thus gives you the option of deliberately avoiding knowledge of harassment and the accompanying duty to do something about it. (This ostrich head-in-the-sand strategy wouldn’t be available under the HUD “should reasonably know about” standard.) As a result, reporting creates extra responsibility because once tenants report it to you, you have knowledge of the harassment and must take steps to address it.

The heart of the policy, then, are the provisions explaining how you intend to address the harassment reported to you. Although there’s no one formula, your policy should provide for three layers of response to harassment complaints:

Level 1: Calling for Emergency Help. The first and most immediate concern is to call 911, law enforcement, or other emergency responders if there’s a risk of violence or other emergency. Hopefully, this is something tenants do themselves before reporting the harassment to you [Policy, Sec. 6(a)].

Level 2: Mediation and Conciliation. Being the landlord puts you in the position to intervene and resolve tenant-on-tenant harassment. The most effective way to leverage that position is to empower the tenants to resolve things themselves by acting as a neutral mediator or conciliator. Bring the parties together, listen to both sides of the story, seek common grounds of agreement, and suggest resolutions [Policy, Sec. 6(b)].

Level 3: Investigation. For mediation to work, both sides must be willing to work together in good faith to resolve their dispute. So, you need to have some other mechanism to deal with harassment complaints that mediation can’t resolve. At that point, the imperative becomes to determine exactly what happened and whether the harassment accusations are true. Accordingly, your policy should provide for a full, fast, and fair investigation. While procedures vary depending on the circumstances and situations, investigations should be carried out by a qualified and neutral investigator who isn’t involved in the disputes and is deemed impartial to both parties [Policy, Sec. 6(c)].

The policy should also include assurances that you’ll keep the investigation report and other personal information about the tenants involved confidential and not disclose it to third parties unless the laws allow or require you to do so [Policy, Sec. 6(d)]. In addition, you should describe the steps you’ll take to support tenants who suffer harassment. At a minimum, that should include providing victims with information about the medical, psychological, or other support services available; if feasible, you might also want to pay all or some of the costs for such services [Policy, Sec. 6(e)].

Element #6: Potential Discipline for Harassment Violations

Having an anti-harassment policy is worse than useless if you’re not prepared to hold tenants accountable for the harassment they commit. Such accountability should include reserving the right to discipline and even evict tenants found to have engaged in harassment, particularly when that harassment is based on the victim’s race, color, national origin, religion, sex, disability, familial status, or other protected class(es) under your state’s fair housing laws.

Accordingly, your policy should state that harassment is a “material” violation of the lease that may justify termination of the harasser’s tenancy. The good news is that your standard lease probably already includes provisions governing tenant conduct that you can rely on to enforce this rule, including the requirement that tenants (and other persons on the premises with tenants’ consent):

• Conduct themselves in a civil, respectful, and lawful manner at all times;
• Refrain from annoying, harassing, embarrassing, disturbing, inconveniencing, or harming other tenants or persons on the premises; and
• Not engage in acts of discrimination, nuisance, breach of the peace, or any other illegal activity.

Be careful how you word the disciplinary provisions. What you want to do is reserve the right to evict for a first offense; what you don’t want to do is require termination automatically and fail to leave yourself leeway to impose lesser discipline for less severe offenses and/or tenants you believe are capable of correcting their behavior [Policy, Sec. 7].  

Element #7: Clarification of Tenant’s Right to File a Fair Housing Complaint

Based on best practices and principles of employment discrimination law, anti-harassment policies should include clear language spelling out that victims of harassment based on race, color, national origin, religion, sex, disability, familial status, or other protected class(es) under your state’s fair housing laws have the right to file a fair housing discrimination complaint. Otherwise, victims may think that the anti-harassment policy is designed to substitute rather than supplement their fair housing protection rights [Policy, Sec. 8].

[Corrected Update: The third paragraph below the Question has been revised to clarify that SB 282 extended the Grace Period for tenants to cover the entireMoratorium period, April 1, 2020 to June 30, 2021. Thanks to John VanLandingham for bringing this to our attention.]

Question: We have several tenants that have vacated owing us money. They did not have a declaration on file with us. Can we start to collect on this money owed? What are our next steps?

Answer: The Oregon Eviction Moratorium laws have been largely silent on the fate of the non-payment balance of former tenants. Here’s what we do know:

There is a short window, between March 31, 2021 and June 30, 2021 where a landlord may file an action to recover a Nonpayment Balance (all outstanding rents, charges and fees accrued between April 1, 2020 to December 31, 2020), but only from a tenant who has notfiled a Declaration of Financial Hardship. 

This window is closed on July 1, 2021, when relevant portions of a new bill, SB 282, come into effect. SB 282 extended the Grace Period to cover the entireMoratorium period, April 1, 2020 to June 30, 2021. Accordingly, commencing on July 1, 2021, a landlord must wait until after February 28, 2022 to recover any outstanding Nonpayment Balance accruing during the Moratorium, regardless of whether the tenant has submitted a Declaration of Financial Hardship.

While filing to collect a Nonpayment Balance is technically possible in the short window between March 31 and June 30, 2021 under the current moratorium rules, there is no way of knowing how the courts will interpret this right, or if it is being allowed at this time. Problem: The Moratorium bills do not specify whether these protections apply only to current tenants or to current andformer tenants. Without delving into the legislative history, or getting a legal opinion from your own counsel, the safest approach might be to interpret this prohibition as applying to both current and former tenants.

The most recent bill, SB 282, signed in mid-May 2021, prohibits landlords from reporting outstanding rents, charges, and fees accruing between April 1, 2020 to June 30, 2021 to any consumer credit agency.

All of the Eviction Moratorium bills, dating back to early 2020 (HB 4213, HB 4401, and SB 282) are largely silent on the application of these new regulations to tenants who have moved out during the pandemic. The only portion of the law directly addressing former tenants says that if a tenancy terminates before the end of the new Grace Period (i.e., before February 28, 2022), a landlord “may claim from the security deposit or last month’s rent deposit to repay the unpaid rent balance that accrued [between April 1, 2020 and June 30, 2021].” 

Though there is no indication whether the laws implicate the relationship between landlords and former tenants, prior guidance issued by the Oregon Law Center in a January 2021 webinar addressing HB 4401 indicates that the laws likely do impact former tenants. Much of the relevant language between HB 4401 and SB 282 remains the same, so it’s reasonable to assume that the interpretation of one will suffice for the other unless and until further guidance is issued. 

Oregon Law Center HB 4401 Eviction Moratorium FAQ

“Q: Does the prohibition on reporting "non-payment balance to any consumer credit agency" include stopping landlords from sending past residents to collections?

“A: If the debt is for rent owed during the moratorium period [now April 1, 2020 through June 30, 2021], and is either debt from before December, or the tenant has submitted a Hardship Declaration, then the landlord may not make a report to the credit bureau and may not pursue collections while the tenant is covered by the moratorium. After the tenant has moved out, the law is less clear. There is an argument that these protections continue until the end of the moratorium period, regardless of whether the tenant has moved out.”[emphasis added]

“Q: What if a client has vacated a unit with a remaining balance of rent still due, can they submit the declaration of hardship to prevent those charges from being submitted to collections?[. . .]

“A: If a tenant vacates a unit with a remaining balance of rent still due, the landlord can use the deposit to pay for past-due rent. If there is still remaining past due rent owed, and the tenant had submitted a declaration form to the landlord before moving out, it is unclear whether the landlord can pursue collections and make a credit bureau report right away,(SB 282 has made reporting nonpayment debt to a credit bureau unlawful) or has to wait until the end of the moratorium period(June 30, 2021).”[1][emphasis added.]

What’s Next:

Landlords will be able to begin collecting the current month’s rents, charges, and fees, on time and with appropriate remedies (imposition of late fees or termination) on and after July 1, 2021. For any outstanding Nonpayment Balance for current or former tenants, landlords may:

 1) Apply to the Landlord Compensation Fund for partial compensation for their losses   (Note: Must have a signed Declaration of Financial Hardship from tenant, current or        former);

2) Contact the tenant and try to work out a voluntary repayment plan for nonpayment     debt; 

3) Wait until after February 28, 2022 to pursue legal action to collect the debt. 

Since Oregon has been operating under some form of Covid-related eviction and collections moratoria since the Spring of 2020, there has been no official guidance on how to collect a Nonpayment Balance from anyone. It simply hasn’t been an option for the last year. Tenants will be required to pay current rents beginning in July of 2021, and collections for debts incurred after that date will be as normal. How the process of collecting outstandingNonpayment Balances will proceed is unclear at this time.

It is worth noting that the eviction moratoria laws permit landlords to accept partial payments from tenants, or on behalf of tenants, without waiving their rights to later seek the balance of the debt or pursuing any other available options once the latest moratorium expires. 

Also, the Landlord Compensation Fund will have a third round of funding and, unlike the prior two rounds, landlords may apply for compensation for former tenants provided they (a) have a signed Hardship Declaration and (b) a current address on file. If a tenant has passed away with an outstanding debt, the landlord should contact the Landlord Compensation Fund for further guidance.

MHCO NOTE:  This is the first of several articles that MHCO will be publishing on changes in Oregon statute resulting from the 2021 Oregon Legislative Session.  Forms will also be updated or created as necessary as we head into the summer.

[NOTE: Except where explicitly stated otherwise, MHCO’s prior guidance on HB 4401 still applies until July 1, 2021.]

The Oregon Legislature has once again updated the Eviction Moratorium rules for landlords and tenants in response to the continuing Covid emergency. Most recently, in May 2021, the legislature passed Senate Bill 282 which amends certain portions of the earlier House Bills 4213 and 4401. 

To read the complete article please click the attachment at the top of this page.

[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.

Effective July 1, 2021 the process for evicting residents who have not paid rent since July 1, 2021 forward will require a new process and forms.  The necessary forms for the new non payment of rent process are attached above to this article.  These new forms ARE NOT posted under the "Form Section" of MHCO.ORG due to frequent changes mandated by the Legislature.  Do not use any forms that you downloaded prior to July 1, 2021 as those forms are out of date.  Always download forms from MHCO.ORG on the day of use to make sure you are in compliance with a frequently changing regulatory environment.

Notes on the new process and forms:

• The 10-day (formerly 72-hour) notice can only be issued after 7 days of nonpayment – so if the payment date is the first, then you’d have to wait until the 8th to issue - this did not change under HB 4401.  
  • However, as you must realize with all the legislative stuff, rents between 4-1-2020 and 6-30-21 cannot be collected before 3-1-2022.
  • And notices of nonpayment or FEDs rents for 7-2021+ can commence but (a) only with the eviction protection notice and (b) if tenant provides documentation he/she is applying for funds, the landlord or court has to wait another 60 days.  Bottom line is that residents can drag out nonpayments if they want for months is landlord's only recourse is state/federal funds)

MHCO is working on additional tools to help managers and landlords understand the new regulations.  Look for a ‘flow chart’ in early August and we will do an extensive Q&A article as questions become more apparent.

The two previous articles by Phil Querin on the new process as a result of SB282 and SB278 which are posted under "Community Updates" are probably worth reviewing now that you have the forms in hand.

This has been a long trying process – MHCO appreciates the efforts of all those involved to draft forms that are useful and accurate.  We are especially appreciative of Phil Querin's knowledge and expertise.  More information will be forthcoming in the weeks ahead.  Thank you for your patience.

Attached (above) is a Flow Chart for Non Payment After July 1, 2021