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You Make the Call: Does the tenant have a valid claim for failure to accommodate?

Answer: No

Ruling: The California federal court grants summary judgment to the defendants. Even if EHS is a “qualifying disability” under the FHA, the request to remove the cell tower isn’t a “reasonable accommodation” because it would force the city to violate the environmental law [Wolf v. City of Millbrae, 2021 U.S. Dist. LEXIS 159025, 2021 WL 3727072].

Takeaway: You don’t have to provide accommodations that would require violating laws or lease obligations to other tenants. However, you should explore alternatives that would satisfy the requestor’s needs without violating laws or contractual obligations. There were no such alternatives available in the Wolf case.

Tip: You need only grant requested accommodations that are reasonable. According to HUD, a request for an accommodation is reasonable if it:

• Doesn’t cause landlords to incur an undue financial and administrative burden;
• Doesn’t cause a basic or fundamental change in the nature of the housing program available;
• Won’t cause harm or damage to others; and
• Isn’t technologically impossible.

To that list, you can add a request that doesn’t force the landlord to violate a valid law or contractual obligation.

Note:  Sample Rent Ledger is attached above.

Question 1: Tenant's balance goes back to the beginning of April 2020. Do we have to follow the rent schedule that is laid out by rental assistance agency?  Example: Oregon Emergency Rental Assistance Program gives you a statement on how to apply the rent  and it usually is  the most recent delinquent rent.  They will only cover 12 months plus 3 future months.  

In my opinion, yes, the landlord should apply the funds in the way that the Assistance Program dictates. There is a Landlord Hotline 844-378-2931 (operative during regular business hours) to discuss issues and questions. While I agree that it does make sense to apply it to the oldest debt first, I'm not comfortable making a blanket statement that you can ignore the dictates of the Program. I don't know whether acceptance of the funds creates a contract. Landlords should check with the hotline or their attorney for further guidance. So, I'd say payment should be applied as follows: (a) as dictated by the Program, (b) if the Program does not address the application of funds, then in accordance with the terms the lease, and (c) finally, if the lease is also silent, then in accordance with ORS 90.220(9).

Presuming that you apply the back rent to the most recent delinquent rent, that should put all the outstanding back rent within the Emergency Period, therefore subject to the tolling of the Statute of Limitations under the Eviction Moratorium. Basically, applying it to the most recent back rent gives the landlord more time to pursue the deb because they (landlord) have until next February to do so.  See the attached ledger to explain what I mean.

Question 2: What if tenant can only pay partial rent from the past due emergency period? Do we take it or will it result in a waiver? Does it preclude the landlord from sending out further 10-day notices of nonpayment?

ORS 90.417(4) is clear that acceptance of partial rent may, under certain circumstances, constitute a waiver of the right to terminate for nonpayment of rent. 

There are two ways to avoid acceptance as a waiver: 

• If Landlord accepts partial payment pursuant to a written agreement with tenant before issuing a Notice of Termination for nonpayment and tenant fails to pay the balance by the agreed-upon date. If so, the landlord’s Notice of Termination is served no earlier than if no rent had been accepted, AND the Notice provides that the tenant can cure by paying the balance by a time set by statute or by agreement of the parties; or

• Landlord accepts partial payment after issuing a Notice of Termination but enters into a written agreement with the tenant that acceptance does not constitute waiver. The agreement may also provide that the landlord may terminate and evict without further notice if the tenant does not pay the balance by the agreed upon date.

As with everything else, Covid has plowed new ground. I would not advise a landlord to accept rent from a tenant without getting a legally drafted agreement containing a non-waiver. If the tenant fails to pay under the written agreement then there is a basis for termination. 

Question 3: Now that the Oregon Emergency Fund is closed can we start issuing 10-day Notices on the back balances?

If the tenant has not provided their landlord with proof of their application to a Rental Assistance Program then they are not protected by the “Safe Harbor” protection it affords.[1] A landlord may pursue normal remedies against them unless/until they are notified that an application is pending. If you begin proceedings against a tenant and they then provide proof of application the proceedings must stop.

If a tenant has already provided proof of application to a Rental Assistance Program and the landlord is not receiving payment while the Safe Harbor is in place, the Landlord may apply to the Landlord Guarantee Program. See,  https://www.oregonlgp.org.  The Program is designed to get funds to landlords who are not receiving funds during the Safe Harbor period. The earliest funds may be requested was July 1, 2021 and the latest will be June 30, 2022 - but there may be special provision if a tenant's application is still pending when the law sunsets on October 1, 2022. 

Question 4: What about the one-year statute of limitations for claims by a landlord based on the tenant’s nonpayment of rent. Are rents owed from the pre-April 2020 – June 30, 2021 period affected under the one-year statute of limitations for past due rents?

No, the eviction moratorium only suspended the statute of limitations for debts arising during the Emergency Period April 1, 2020 to June 30, 2021. Per SB 282 the Statute began to run again on March 1, 2022 which was the end of the grace period (i.e., the period to pay off unpaid rent debt from the emergency period). The clock is running on debts prior to April 1, 2020 and after July 1, 2021.

However, note there was a tolling of some statutes of limitations by other Covid bills (see, HB 4212). It is unclear when that ended, i.e. whether it was when the bill expired (Dec 31) or when the State of Emergency was lifted in April. Landlords should check with their own attorneys regarding any claims outside of the Emergency Period. It is unclear how the courts will deal with these frequently changing dates.

[1] I am using the term “Safe Harbor” to refer to the time a tenant is protected from eviction after notifying landlord that they have made application under the Rental Assistance Program.

Situation: A condo association with a no-pets policy lets a tenant keep two service dogs to accommodate his disability. After several years of good behavior, the dogs turn into incessant barkers who disturb their neighbors. The association orders the tenant to get rid of them or face eviction.  

You Make the Call: Did the association violate its FHA duty to accommodate the tenant?

Answer: No

Ruling: The Florida state court refuses to grant the tenant an injunction to block the association from enforcing the rule, and the federal court upholds the ruling on procedural grounds [Mercier v. Turnberry Isle S. Condo. Ass’n, 2021 U.S. Dist. LEXIS 243301].

Takeaway: Even service animals that are reasonably necessary to enable disabled prospects and tenants an equal opportunity to use and enjoy a dwelling and public and common use areas must behave and not create an unreasonable nuisance for other tenants. The broader point is that the FHA duty to accommodate reasonable requests for service animals doesn’t preclude you from enforcing rules necessary to ensure your other residents a quiet, clean, and healthy community.

You Make the Call: Did the landlord’s credit score minimum policy discriminate?

Answer: Yes

Ruling: The Oregon federal court says the prospect can sue the landlord for “adopting a policy that disproportionately makes housing unavailable to African-Americans.” True, the prospect never actually applied, but based on the testers’ evidence, the court agreed that applying would have just been a “futile gesture” [Owens v. Latitude Props., 2021 U.S. Dist. LEXIS 61054].

Takeaway: Rental policies and practices that appear neutral on their face may be illegal if they have the effect of discriminating against a protected group. This is true even if there’s no intent to discriminate. For example, statistics show that African Americans and Hispanics are arrested, convicted, and incarcerated at disproportionately higher rates than whites with respect to their share of the general population. Thus, while categorically refusing to rent to any person with a criminal record may look like a legitimate safety policy, it has the effect of discriminating against African Americans and Hispanics.

Bill Miner's power point presentation for MHCO's 90 minute seminar (June 24, 2022) on Non Payment of Rent Evictions (for MHCO Members Only) is attached above.  

MHCO would like to thank Bill for an outstanding presentation and for his continued efforts to provide quality information on all aspects of Landlord Tenant Law to MHCO members.  And we would like to thank the MHCO members who attended this special zoom seminar.

Without getting into all the case details, suffice it to say that because of an inadvertent mistake on a background check, the couple claimed that they had become “tenants” (they were not) and refused to leave the park.  This forced the park to issue a formal eviction notice and go to court, at which point the guests demanded what turned out to be a two-day jury trial.  (NOTE:  While uncommon, defendants in an eviction case are entitled to a jury trial under Oregon law if they demand one.)

Before the actual trial, the case dragged on for over two months primarily due to court scheduling issues.  In the meantime, the couple harassed other park residents with their “beliefs” and promoted their hate speech websites by handing out unsolicited flyers.  The couple then represented themselves at trial and mostly used it as a forum to rant to the jury about their beliefs.  The jury returned a verdict for the park, so the couple will soon be evicted by the sheriff.

For RV parks, this highlights the need to include in your guest registration documents Oregon’s “vacation occupancy” language stating that: (1) the occupants rent the RV space for vacation purposes only, not as a principal residence, (2) the occupants have a principal residence other than at the RV space, and (3) the period of authorized occupancy does not exceed 45 days. This prevents occupants from becoming “tenants” and should allow you to have them removed as trespassers if they refuse to vacate upon request.  Also be sure to NEVER accept monthly payments from guests, which could arguably make them “tenants.”  Only charge and accept daily rates from vacation occupants and never let them stay more than 45 days.

This case also reinforces the need for all landlords to conduct thorough background checks on every tenant applicant.  There are numerous online tenant screening companies offering this service.  A tenant screening service can reveal important information that Oregon landlords can consider when denying an applicant.  This includes, among other things, negative credit history, certain criminal convictions, prior evictions, and other information that might threaten the health, safety or right to peaceful enjoyment of the premises for other residents.

You Make the Call: Does the tenant have a legally valid claim for FHA discrimination?

Answer: Yes

Ruling: The Pennsylvania federal court rejects summary judgment for the landlord and allows the case to go to trial, citing well-established case law finding that the FHA does protect victims of domestic violence given its disproportionate impact on women and minorities [Butler v. Sundo Capital, LLC, 2021 U.S. Dist. LEXIS 171736, 2021 WL 4134034].

Takeaway: There are three important morals to take from the Butler case:

1. Domestic violence victims can sue for housing discrimination under the FHA (as well as many state laws, including Delaware, the District of Columbia, Illinois, New Jersey, North Dakota, Rhode Island, Vermont, and Wisconsin);
2. Zero-tolerance policies that lump victims and purveyors of domestic violence together for adverse treatment is a form of discrimination the law prohibits; and
3. Protection for domestic violence victims may include allowing them out of their lease early without penalty if they must move out to avoid threatened violence. 

Answer 1:  Not in my opinion.  The temporary occupant agreement concept is that the person is not going to be a “co-renter”. They are being permitted to come onto the space as an accommodation by the landlord to the current resident who wants them there.  If they are to become a temporary occupant, but your background check inadvertently reveals derogatory references related to financial information, and that concerns you, then limit the amount of time they can remain there, and take things a month, or six months, at a time.  You might consider having tenants fill out a form in advance explaining exactly why they want the temporary occupant there.  If a tenant wants them there to share the rental obligation then you should know that before offering the temporary occupant status.  If that is the case, then have them apply as a tenant.  If they don’t pass the financial background check, then reject them on that basis.       

Question 2: The temporary occupancy agreement states that the temporary occupant must comply with the laws/Rules Regulations & Policies of the community.  Who is responsible to provide this information to the temporary occupant and when should it be given?  

Answer 2:  I understand that the temporary occupant law does not specifically address this point.  But you have the most to lose if the rules are not given to them at the outset of the temporary occupant relationship.  That being the case, I would suggest you append the rules to the temporary occupant agreement, and have them sign both the agreement and the attached rules.  Then there is no question about whether they got them.

Question 3:  The temporary occupant agreement and the law state that a temporary occupant can be terminated “for cause” if there is a material violation of the occupancy agreement and that the temporary occupant does not have a right to cure the violation.  The other option is termination by automatic expiration of the agreement (if the box is checked that specifies this).  If the landlord needs to issue a for cause termination (instead of termination by automatic expiration) the termination must be done in accordance with the law outlined in ORS 90.392 (for non-MHP tenancies) or 90.630 (for MHP tenancies).  However after reading these statutes, they do not give an option for the landlord to issue a for cause notice with no right to cure. How is a landlord supposed to issue a for cause termination notice with no right to cure and have it held up in court?  If a landlord issues a for cause notice with no right to cure, what form should be used and what is the time frame for the termination.  

Answer 3:  The temporary occupant law is addressed in ORS 90.275. You may terminate the temporary occupant for a material violation of the temporary occupancy agreement.  That agreement also terminates by its own terms when it expires (if you checked that box on the form). The law says that upon termination or expiration, the temporary occupant shall “promptly vacate.”  If they don’t, then the landlord can issue a for cause termination under 90.630 (for MHP tenancies) to the tenant – not the temporary occupant.  That means you would issue a termination notice under 90.630 for the tenant to vacate if the temporary occupant failed to do so as required.  The opportunity to cure is for the tenant to get the temporary occupant to vacate.    If they temporary occupant fails to vacate within the 30-day cure period given by law to the tenant, then the entire space tenancy is terminated.  In such case, the law says the temporary occupant – if they remain – is treated as a “squatter.”  ORS 90.403 then permits you to give a 24-hour non-curable termination notice to the “squatter”  and evict, if necessary, through the normal FED process.

Background. Hickey v. Scott was an eviction action. Under the lease at issue, the tenants were to pay a $1,500 security deposit and $850 in monthly rent. Upon move-in their landlord received the $1,500 as a subsidy from a not-for-profit institution, but only $525 in “rent” from the tenants. Two months later the landlord issued the tenants a notice of nonpayment saying that they must pay $1,700 (two month’s rent at $850/month) to cure or face eviction. The tenants did not pay, and the eviction was filed.

The trial court sided with the Landlord on the eviction but ultimately determined that the tenants only owed $1,175 (i.e., the remaining $325 of the first month’s rent ($850 - $525), plus the full $850 for the second month). The tenants appealed contending that, because the Landlord asked for an overstated amount, the 72-hour notice was defective, and the case must be dismissed.

The Court of Appeals agreed with the Landlord, upholding the trial court’s eviction. The tenants appealed to the Oregon Supreme Court, who disagreed with the Court of Appeals and trial court. It held that the eviction notice was faulty since the notice sought an overstated amount of rent due and therefore automatic dismissal was required.

Supreme Court’s Reasoning. The Court’s written opinion engaged in both statutory interpretation and an expanded look at the nature of the landlord-tenant relationship. 

1. Statutory Interpretation. The Court reasoned that an FED proceeding requires two events: (a) That the tenant violated the rental agreement in some manner, and (b) That the landlord delivered a valid notice of termination. 

While it wasn’t disputed that the tenants had violated their rental agreement by failing to pay their rent, the landlord had not provided a valid notice of termination because the 72-houe notice had overstated the amount of money required to cure.

In short, the Court’s interpretation of ORS 90.394(3) was that there be a specific sum due and a date and time within which the tenant had cure. This led to the inescapable conclusion that the rent demand must be accurate. Overstating the demand, even innocently, renders the notice invalid and requires a dismissal of the case. Understating it is OK.[2]

2. Landlord-Tenant Relationship. The Court also acknowledged that there is an imbalance of power in the landlord-tenant relationship. Because of their business, landlords are in the best position to accurately determine the amount they will accept to cure the tenant’s default. If the landlord’s notice is wrong, the case is dismissed, but the eviction can be refiled seeking the proper amount. 

Where Does This Leave Oregon Landlords? The Court recognized that the ruling appears to be overly harsh to landlords, since there is no requirement that a landlord act in bad faith. An innocent mistake over the amount due will merit a dismissal just as quickly as an intentional act.

Landlords have two options if their claim is dismissed for an invalid notice.

1. Option #1. If an FED is dismissed because the Landlord overstated the amount due in the termination notice, the landlord may re-issue a notice with the correct amount and immediately re-file the eviction. It is the summary nature of FEDs, i.e., the speed with which a landlord may have the case decided, that requires absolute accuracy.

2. Option #2. In Hickey, the Court was only concerned with landlords overstating the amount of rent due. The Court, however, had no problem with a landlord stating an amount of rent necessary to cure that is less than the full amount of rent due. They make a distinction between the amount that will be accepted to “cure” versus the amount “owed.”[3]

MHCO Form Changes. MHCO Form 82A, the ten-day notice of nonpayment of rent has been modified (a) to encourage tenants to notify management if they dispute the “Total Rent Due,” and (b) to encourage landlords to (i) make sure the “Total Rent Due” is accurate, (ii) if the amount is disputed, to verify the figures, and (iii) if there are questions, to check with legal counsel before proceeding.

Conclusion. Landlords should use caution to accurately determine the amount of outstanding rent due before issuing the notice of nonpayment. The risk for having an overstated figure is automatic dismissal of the eviction. 

If an accurate amount is difficult to arrive at, or there is disagreement over the amount, landlords should consult with their legal counsel. One consideration may be that rather than risking an overstated disputed amount, is to accept a lesser amount to cure. An inaccurate, but lower, estimate of the outstanding rent will not trigger an automatic dismissal, and if that sum is not paid, the eviction will still be legal.