Eviction in Oregon in the Age of COVID-19 – Frequently Asked Questions

Eviction

On June 30, 2020, Governor Kate Brown signed HB 4213 into law, replacing Executive Order 20-13 as Oregon’s eviction moratorium. Among other things, HB 4213 restricts and prohibits certain landlord actions during the COVID-19 emergency period – defined as April 1, 2020 to September 30, 2020 – as they relate to residential and commercial tenants. Landlords and tenants should be aware of the changes made by HB 4213. We here at SYK have compiled a list of Frequently Asked Questions to clear the air on some of the changes this new law makes.

May I deliver a notice of termination to my tenant’s based on their failure to pay rent?

A qualified no. HB 4213 defines as the “emergency period – April 1 to September 30 – and prohibits evictions during that time. If your tenants fall behind on their rent or other charges between those dates, HB 4213 prohibits your ability to evict them based on that nonpayment balance.

However, if your tenant has a nonpayment balance that accrued prior to April 1, 2020, you may be able to proceed with an eviction on a termination of tenancy that was issued prior to April 1, 2020. Please note, it is important to point out that every county is in a different reopening phase. Some courts may not be willing to enforce eviction notices whether or not HB 4213 applies to your tenant. And some counties may have rules and orders related to evictions that are more stringent than the statewide law.

May I charge my tenants a late fee for failing to pay rent?

During the emergency period, a landlord may not assess a late fee. Additionally, a landlord may not report a tenant’s nonpayment as delinquent to any consumer credit agency.

If my tenant falls behind, but begins to pay again, may I apply that rent to their past due rent?

No; HB 4213 creates a new order for applying payments received from tenants. If you receive payments from your tenant, it must be applied first to rent for the current period, then to utility charges, then late rent payment charges, and finally to fees or charges owed for damage claims against the tenant.

What if I want to sell my rental property to someone who wants to make it their home?

HB 4213 allows for the sale of the property and termination of the tenancy in this circumstance. You are still able to sell your rental property, as long as a landlord provides at least 90 days’ written notice to a tenant not more than 120 days after accepting an offer to purchase, and the property is to be used as the buyer’s primary residence.

If your buyer, on the other hand, is going to use the rental property as a rental, then no notice to the tenant is required, and the tenancy continues.

Once the emergency period ends on September 30, 2020, may I begin the process of evicting my tenant for not paying rent during the months of April 2020 through September 2020?

No; HB 4213 also creates a six-month grace period that begins on October 1, 2020, and ends on March 31, 2021. This grace period is designed to give tenants time to pay their outstanding balance of rent. During that time, a landlord cannot evict a tenant based on a failure to rent during the emergency period. However, if a tenant fails to pay October 2020, rent – the first month outside of the emergency period – that failure can result in a properly issued eviction notice.

How will I know my tenant is going to use the rental period to pay their nonpayment balance? Does the tenant have an obligation to give notice?

Tenants are only required to give their landlords notice of their intention to use the grace period if the landlord sends them a written notice that states when the emergency period ended and that rent is still due. If a tenant fails to do so, a landlord can recover half of one month’s rent in damages once the grace period ends. A tenant’s notice must be actual notice under ORS 90.150 or ORS 91.110 or by electronic means delivered to the landlord. A landlord is not required to give their tenants notice of the grace period, although landlords have the option to do so if they choose. If a landlord does not give their tenant notice of the grace period, tenants do not have to give their landlords notice of their intention to use the grace period.

My tenant is receiving publicly funded rental assistance. Am I entitled to those funds as their landlord?

No; HB 4213 specifically states that a tenant is not required to pay all their publicly funded rent assistance to a landlord as payment for rent.

What if I want to evict my tenant for reasons other than nonpayment of rent? Am I allowed to do so?

Under HB 4213, a residential landlord, in most situations, cannot terminate a tenancy without cause during the emergency period. However, a residential landlord may terminate a tenancy without cause during the grace period. Though most no cause/landlord qualifying reasons for eviction are not available during the emergency period, a residential landlord should consult an attorney about their particular situation. HB 4213 does not prohibit commercial landlords from terminating for no cause. HB 4213 also does not prohibit landlords for terminating for cause. Please note that courts in counties that are in Phase 1 of reopening may not be hearing eviction proceedings yet, pursuant to the Chief Justice’s Orders issued in May. Check with your county’s court clerk to determine whether eviction proceedings have resumed in your county.

Are there any penalties for trying to evict my tenant?

A landlord who violates HB 4213 may owe their tenant up to three months’ rent, actual damages, and attorney fees, if a tenant prevails in court. Additionally, the tenant may receive an injunction to recover their possession of the rental property.

Denise Gorrell draws upon her extensive knowledge of restaurants and the wine industry to inform her real property and commercial law practice. She helps hospitality industry clients navigate complex, important issues such as business formation, real estate agreements, trademarks, OLCC rules and other governmental regulations.

COVID-19 Federal, State, and Local Prohibitions Against Non-Payment Evictions

Real Estate

“Landlords are temporarily prohibited from filing new eviction actions for nonpayment of rent as a result of COVID-19”

The ongoing COVID-19 pandemic has encouraged Oregon State Governor Kate Brown to issue a Stay at Home order effective statewide in an effort to curb the spread of the virus. As a result, many individuals are out of work, causing emotional stress and financial hardship.

Federal, state, and local governments have each taken action in an attempt to reduce financial stress on residential and commercial tenants.

Federal Response

On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). In Section 4024, the CARES Act imposed immediate protections for some residential tenants. Specifically, the CARES Act placed a federal eviction moratorium for nonpayment of rent on covered properties. Landlords are temporarily prohibited from filing new eviction actions for nonpayment of rent as a result of COVID-19, as well as prohibited from charging late fees or other penalties for tenants’ nonpayment of rent. It is critical for landlord to review the definition of covered properties, and confer with a knowledgeable attorney is they are unsure whether they own a covered property.

The moratorium took effect immediately on March 27, 2020 and expires July 25, 2020. Landlords, that own covered properties, are prohibited from evicting residential tenants for nonpayment of rent during the entire course of the moratorium. After the moratorium expires, the landlord may take action against non-paying tenants, subject to a federally imposed 30-day notice to vacate. Please note that the CARES Act does not affect evictions unrelated to non-payment.

Oregon Response

On April 1, 2020, Governor Kate Brown issued Executive Order 20-13 (“EO 20-13”). EO 20-13 declared a moratorium on certain terminations of residential rental agreements and non-residential leases.

During this moratorium, any residential or non-residential tenant who is or will be unable to pay the full rent when due under their rental agreement or lease shall notify the landlord as soon as reasonably possible. Additionally, tenants shall make partial rent payments to the extent that they are financially able to do so.

With regard to non-residential tenants, the tenant must provide their landlord, within 30 calendar days of unpaid rent being due, with documentation or other evidence that nonpayment is caused by, in whole or in part, the COVID-19 pandemic. EO 20-13 does not require similar proof for residential tenants.

Consequently, the landlord may not, for reason of nonpayment of rent (which EO 20-13 defines to include evictions without cause), late charges, utility charges, or any other service charge or fee, terminate the tenant’s rental agreement or take any action, judicial or otherwise, relating to an eviction arising under ORS 105.105 through ORS 105.168. Prohibited actions include, without limitation, filing, serving, delivering or acting on any notice, order or writ of termination, or interfere with the tenant’s right to possession of the premises.

The moratorium does not relieve a tenant from paying rent, utility charges, or any other service charges or fees. The moratorium does, however, relieve a tenant from paying for late charges or other penalties arising from nonpayment.

The moratorium began April 1, 2020 and will continue in effect until June 30, 2020, unless terminated sooner by Governor Kate Brown. Any person found to be in violation of EO 20-13 is subject to criminal penalties.

Multnomah County Response

Prior to the announcement of EO 20-13, on March 11, 2020, the Multnomah County Chair signed Executive Order 388 (“EO 388”), declaring an emergency for Multnomah County and announcing a moratorium on residential evictions for nonpayment of rent and rent deferral  in Multnomah County. EO 388 was ratified by the Multnomah County Board of Commissioners on March 19, 2020, and the Multnomah Commissioners adopted Ordinance 1282 putting in effect the County wide eviction moratorium. On April 16, 2020, the Multnomah Commissioners passed Ordinance 1284 that suspended the enforcement of Ordinance 1282, in order to align the County with the Governor’s EO 20-13. Ordinance 1284 continues the six month grace period for residential tenants to repay their unpaid rent, but tenants no longer need to provide proof of the substantial loss of income to their landlords or notify their landlords on or before the day that the rent is due that they are unable to pay rent. The tenants instead need to notify their landlords as soon as reasonably possible that they are unable to pay rent.

Multnomah County Ordinance 1284 does not relieve a tenant of paying rent. The tenant must still pay the missed rent within 6 months after expiration of the emergency; however, no late fees will accrue.

Civil proceedings to enforce Ordinance 1284, may be instituted by Multnomah County or the tenant. A landlord that fails to comply with any of the requirements set forth in Ordinance 1284 shall be subject to appropriate injunctive relief, and for an amount up to 3 times the monthly rent, as well as actual damages, reasonable attorney fees, and costs.

Properties within Multnomah County are subject to both the statewide EO 20-13 moratorium and the Multnomah County Ordinance 1284.

For assistance in determining how your property may be affected by the CARES Act, EO 20-13, and Ordinance 1284, we encourage you to speak with a knowledgeable real estate attorney.

Denise Gorrell draws upon her extensive knowledge of restaurants and the wine industry to inform her real property and commercial law practice. She helps hospitality industry clients navigate complex, important issues such as business formation, real estate agreements, trademarks, OLCC rules and other governmental regulations.

Colleen Munoz

 

Colleen O. Muñoz is a law clerk at and certified law student at SYK who graduated with honors from Lewis & Clark Law School in January 2020. She published a law review article in March 2020 dissecting the categorical approach to contested deportation proceedings.