Phil Querin Q&A: Dealing with Unpaid Rents Today

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Phil Querin

 

Question:  We had a resident that we entered into a stipulated judgment agreement with on March 6, 2020.  This was prior to tenants having the ability to claim financial hardship or having the Moratorium in place. They paid 2 payments but stopped paying the terms of the agreement as well as not paying their current rent payments. Are they protected under the financial hardship provisions of the Moratorium? Are we required to send them the Declaration of Financial Hardship? Can we file an Affidavit of Non-compliance due to the resident not complying with the stipulated agreement? 

 

 

 

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. 

 

[1]See, ORS 90.427(5)(a)-(d).

[2]Note: This does not include listing or marketing the home for sale. Seller/landlord would have to have a pre-arranged buyer who was willing to buy without inspections, etc., or a tenant who was willing to permit the same with 24-hour notice. Of course, seller/landlord could always make financial arrangements with tenant for concessions.

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