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.

Portland “Relocation Assistance” Ordinance Requires Landlords Pay

Tenant Landlord

Portland City Council Passes Ordinance Requiring Landlords to Pay Tenant’s Moving Costs

On the evening of February 2, 2017, the Portland City Council passed an ordinance that will require landlords to pay for relocation assistance to their tenants. The ordinance will enable tenants to be paid for moving costs when their landlord has either raised the rent by 10% or more or has served a “no cause” termination notice on the tenant.

The Ordinance is in response to the housing state of emergency that was declared by the city in October of 2015 and is intended to assist renters during the continued housing crisis in Portland.

The relocation assistance ordinance is considered to be the strongest renter protection Portland has ever seen with costs to landlords ranging from $2,900 to $4,500, depending on the type of dwelling unit rented.

While tenant advocates claim that the Ordinance is a necessary step in protecting renters, landlord advocates claim the Ordinance may bankrupt landlords who already face property maintenance costs and increasing property taxes.

The new Ordinance amends the “Portland Renter Additional Protections” section of city ordinance 30.01.085, which lists a landlord’s obligation when terminating a tenancy or raising the rent. In addition to requiring a landlord to deliver a written notice of termination to the tenant not less than 90 days before the termination date, the new Ordinance states that a landlord must pay the mandated relocation assistance to the tenant not less than 75 days prior to the termination date.

If a landlord chooses to raise the rent by 10% or more, in addition to providing a 90 day notice prior to the increase taking effect, the landlord must now also be ready to pay the relocation fee. The new Ordinance provides that if within 14 days after receiving the written notice the tenant provides written notice of termination to the landlord, the landlord must then pay the tenant the relocation amount within 14 days.

A landlord’s failure to comply with any of the Ordinance’s requirements could result in liability to the tenant for three months rent, actual damages, the relocation assistance amount, reasonable attorney fees, and costs.

After hearing from dozens of mom and pop landlords, the Portland City Council included at least one late amendment which will exempt landlords only managing one rental unit. Other listed exemptions to the ordinance include: week-to-week tenancies, landlords who temporarily rent out their principal residence during an absence of less than 1 year, or to tenants that occupy the same dwelling unit as the landlord. The final version of the new Ordinance has not yet been released.

Prior to the Portland City Council’s decision, attorneys representing landlords in the Portland area said they would sue if the city passed the Ordinance. During the city council hearing landlords’ complained of not being consulted in the drafting of the Ordinance as well as issues involving the vagueness of the Ordinance.

One issue that may arise is with landlords who intended to only rent a property for a fixed term tenancy and expressed as much in the rental agreement. The new Ordinance means that a landlord will have to pay a relocation fee if they choose to not renew the tenant’s lease on substantially the same terms.

The Ordinance, which was immediately enacted, will remain valid potentially as long as the city’s housing emergency continues. Currently the emergency is scheduled to lapse in October, however in the past it has been extended.

The Oregon Residential Landlord Tenant Act (“ORLTA”) and the Portland City Code (“Code”) is highly technical and landlords are well advised to consult with a real estate attorney knowledgeable about ORLTA and the Code before issuing any termination or rent increase notices.

Read the Ordinance and other relevant documents on the city of Portland’s website.