Phil Querin Q&A: Use of MHCO Form 42 (10-day Notice for Nonpayment of Rent)

January 13, 2021

Phil Querin

Question: In reviewing MHCO Form 42, the new 10-day notice, which replaces the old 72-hour notice, we’re told not to use it without consulting an attorney to determine if the Moratorium is still in effect. Isn’t it still in effect until 7/1/2021?

Editor's Note: The revised Form 42 notice and Forms 110 and 111 are ATTACHED to Phil's article under "Community Updates". The forms are not uploaded under "Forms".

Answer: It would be nice if things were so simple, but they aren’t. Due to COVID coupled with Legislative dictates and Executive Orders by the Governor, one needs a flowchart to follow the current status of the law.

Generally, you are correct, June 30, 2021 is the end of the Moratorium (at least for now). But that could change, which is why I say check with legal counsel, because that date could be extended between now and then.

On September 28, 2020, in recognition that Covid-19 hardships were still continuing, Governor Brown issued Executive Order 20-56 which extended the Emergency Period and correspondingprohibitiononno-causeandnonpaymentresidentialevictionstoDecember31,2020. The executive orderdid notextend the Grace Period – all back rents, charges and fees accrued between April 1, 2020 and December 31, 2020 were still due on or before March 31, 2021.

But HB 4401, signed December 23, 2020, provided that forallrenters,theEmergencyPeriod(until December 31, 2020)⁶and Grace Period (through March 31, 2021) as defined in HB 4213 remainunchanged,unless:

The landlord failed to provide a Notice of Eviction Protection (now a MHCO form)[1];and
The landlord failed to provide tenant with a Tenant’s Hardship Declaration Form (now a MHCO form) see attached).

The tenantfilledoutandreturnedtheHardshipDeclarationFormassertingfinancialhardship.

Conceivably, a landlord could have complied by sending out the two HB 4401 required forms, but the tenant never returned the Hardship Declaration. This would mean that the Moratorium deadline of December 31, 2020 ended. This is unlikely. And even if a landlord properly issued the ten-day notice of termination, the tenant could bring the Hardship Declaration to court at the first appearance and get the benefit to the extended Moratorium.

Bottom line, landlords do not want to issue a 10-day notice or file for eviction unless they are positive that their tenant is not protected by the extended Moratorium period. If in doubt, check with legal counsel first.

[1]This notice must include: (a) Any notice given under Section 3 (5)(c), chapter 13, Oregon Laws 2020 (first special session) (Enrolled House Bill 4213);and every termination notice for nonpayment of rent delivered before June 30, 2021;and any summons for eviction based on a termination notice for nonpayment delivered before June 30,2021;

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