Eviction Moratorium: What HB 4401 means for Landlords by Matthew Sorensen
Oregon, like many states, has had an eviction moratorium in various forms in place over the last year. With the recent passage of HB 4401, the moratorium has effectively been extended through June 30, 2021. Under that bill, a tenant need only submit a Declaration of Financial Hardship (with no required verification) to benefit from the moratorium. With that in mind, Oregon landlords need to be prepared to deal with the expiration of the moratorium and what it will mean for them.
Tenants who submit the Declaration have until July 1, 2021 to repay all back rent dating back to April 1, 2020. Tenants who do not submit the Declaration have until March 31, 2021 to catch up on rent. The moratorium also applies to fees, and utility fees paid directly to the landlord, but it does not apply to fees paid to third parties. However, some utility companies, such as the Portland Water Bureau, PGE, and Pacific Power, will not disconnect services for nonpayment at this time. Interested parties should check with applicable utilities to see if they have a policy on disconnection.
HB 4213 and 4401 bar landlords from reporting any delinquent rent accrued during the moratorium periods to credit reporting agencies, provided the delinquency is repaid by the deadlines, and landlords may not charge any late fees for past due rents covered by the moratorium periods. Nothing in any of the Covid-related legislation provides rent forgiveness.
Landlords and tenants may enter into a voluntary payment plan, but the plan must specify that it is voluntary. Further, while accepting partial rent payments usually could constitute a waiver of termination rights under ORS 90.412, HB’s 4213 and 4401 explicitly exempt any partial payments received from the moratorium from the waiver.
Landlords may provide a notice of nonpayment of rent, but the notice may only state that rent obligations continue to accrue, but that no action may be taken until July 1, 2021, if a hardship declaration was signed. If a tenant has not provided the Declaration, the landlord may submit a notice, but must also include a copy of the Declaration form for the tenant.
Landlords impacted by deferred rent have access to a $150 million fund established to assist landlords. The fund can provide 80% of deferred rent, and the landlord must agree to waive the remaining 20%.
Failure to comply with the terms of the Oregon moratorium will allow a tenant to obtain injunctive relief to recover possession of the property or address any other violation. A tenant may also recover up to three months’ rent or actual damages, whichever is greater.
In addition to the above, once the moratorium period is lifted, landlords should be prepared to address defenses raised by tenants who do not pay back their rent in full. In particular, habitability issues are the most likely source of pushback from tenants who fail to bring their accounts current.
Landlords should also be careful not to fall into other traps, such as turning down accommodation requests under housing discrimination laws.
Finally, if applicable, landlords should check property management agreements to ensure that there are appropriate defense and indemnity agreements, and to verify that the property manager has named the landlord as an additional insured covered by their liability policy.
As always, when a landlord begins to navigate the process, either following the March 31 expiration, or the June 30 expiration, they should consult with counsel so as to avoid pitfalls that come with the uncharted territory in the months to come.
Prepared by: Matthew Sorensen
Schulte, Anderson, Downes, Aronson & Bittner, P.C.
February 8th, 2021