Search

By Bill Miner and Seth (Moe) Tangman

First, the bad news: Recent uptick in class action lawsuits puts manufactured home park landlords at risk of damages for technical statutory violations.

There has been an uptick in class action lawsuits filed by manufactured home tenants related to submeter or pro rata utility billings passed through from landlords. The recent spate of lawsuits seek damages for noncompliance with statutory invoicing requirements, irrespective of whether tenants were actually overcharged for utilities, or whether any invoicing deficiency is harmless.

ORS 90.560 et seq. governs a manufactured home park landlord’s ability to charge manufactured home tenants for utilities in the State of Oregon and sets forth procedures and billing requirements for submeter or pro rata utility billings to which landlords must comply. ORS 90.582(3)(a)&(b) states that if a landlord “fails to comply with a provision of ORS 90.560 to 90.584, the tenant may recover from the landlord the greater of: . . .One month’s rent; or . . .Twice the tenant’s actual damages, including any amount wrongfully charged to the tenant.” This penalty applies irrespective of whether a tenant actually suffered any overbilling damages or if the landlord’s failure to comply with the invoicing requirements were minimal and otherwise harmless.

Now the good news: The Oregon Supreme Court recently held that the proper measure of damages under ORS 90.582 is not one month’s rent for each violation; rather it’s the greater of one month’s rent or twice the tenant’s actual damages.

In Shephard Investment Group, LLC v. Ormandy, 371 Or 285 (2023), the Oregon Supreme Court was  asked  to  determine  the  proper  calculation  of  damages  that  may  be  awarded  to  a  tenant,  following  multiple instances  of  landlord  noncompliance  with  certain  utility  billing  requirements  that  repeated  each  month,  over  a  series of months. ORS 90.315 governs the inclusion of utility or public service charges such as for sewer or water service, in non-manufactured home park rental agreements. ORS 90.562 (which applies to manufactured home park tenancies) is substantially similar to ORS 90.315.

Both statutes require  landlords  to  “disclose  to  the  tenant in writing at or before the commencement of the tenancy any utility or service that the tenant pays directly to a utility or service provider that benefits, directly, the landlord or other tenants.” Both statutes state that a landlord “may require a tenant to pay to the landlord a utility or service charge or a public service charge that has been billed by a utility or service provider to the landlord”, also known as “pass-through” billing. However, the statutes condition pass-through billing upon a number of procedural requirements, such  as  billing  the  tenant  within  30  days,  setting  out  the  utility  or service  charge  separately  from  rent,  and  providing copies of the service provider’s bill or an opportunity to inspect it to a tenant. If a landlord engages in pass-through billing for public service charges without having met all of the conditions  of  the statutes,  a  tenant  may  recover  “an  amount  equal  to  one  month’s  periodic  rent  or  twice  the  amount  wrongfully  charged  to  the  tenant,  whichever  is  greater.” 

In this case, the landlord  brought  an eviction action  against the tenant to  recover  possession  of  the landlord’s premises. In response, the tenant alleged a counterclaim that landlord  had  failed  to  comply  with  certain  utility  billing  requirements  found  in  ORS  90.315(4)(b).  Specifically, the tenant alleged that, over the previous  year,  landlord  had  failed  to  (1)  timely  bill  him  in  writing for each month’s utility charges, as required under ORS  90.315(4)(b)(A);  and  (2)  provide  him  with  an  explanation  of  the  “pass  through  charges”  in  either  the  written  rental  agreement  or  separate  billings,  as  required  under  ORS  90.315(4)(b)(B). The  trial  court  agreed  with  tenant,  concluding  that  landlord  had  committed  12  separate  violations—one  per  month  - over  the  12  months within the one-year statute of limitations that governs  landlord-tenant actions. The trial court  awarded  tenant  statutory  damages  in  an  amount  equal  to  12  months  of  rent. 

The landlord appealed and the  Court  of  Appeals  reversed,  concluding  that  the  plain  text  of  ORS 90.315(4)(f)  showed the legislature had not intended for each landlord billing violation  to  be  subject  to  a  separate  sanction.

The Oregon Supreme Court affirmed with a thorough analysis, one that you may want to read, if you are so inclined. The crux of the Supreme Court’s logic is that while there may be substantive violations that are ongoing (i.e. not having specific language in a rental agreement and not placing particular language on a utility bill each month), the fact that they are ongoing is more procedural. The allegations complained of in this particular case were procedural, thus the Supreme Court held that the proper measure of damages is not one month’s rent for each violation, but there is one violation that is ongoing.

While this is a good case to address these types of claims, manufactured home park owners would be wise to reach out to their legal advisors who are well versed in manufactured home park law to review their billing practices to ensure that they are complying with the law.

Bill Miner, Partner-In-Charge Davis Wright Tremaine.  Experience includes defending and prosecuting business torts; breach of contract claims; disputes between and among members of limited liability companies; residential and commercial real estate matters, including landlord-tenant, title, lien, and timber trespass disputes; and probate and trust cases.

Moe Tangman is an attorney at Davis Wright Tramaine and applies his firsthand litigation experience to help his clients find business-oriented solutions tailored to resolve their commercial and corporate disputes. He represents clients in complex commercial litigation matters, particularly with respect to real estate, corporate governance, transactions, business tort, and contract disputes. Moe also maintains a robust class-action defense practice, with an emphasis in the data privacy and cybersecurity space.

Answer:  This is really a 24-hour notice issue.  The applicable statute, ORS 90.396, gives you the right to issue a non-curable 24-hour notice.  The theft constitutes (in my opinion) "outrageous conduct,” for which the notice may issue.[1]  However, it is true that the statute states that a landlord should not issue a 24-hour notice if a 30-day curable notice would suffice.  I suggest that you talk to the resident and tell him he's got two choices: (a) Either return the stolen property, pay the cost to re-install andtake a curable 30-day notice; or (b) Take a 24-hour non-curable notice under ORS 90.630 (for any number of reasons, such as violation of law – i.e. theft – violation of rules or rental agreement re damage to park property).  If there is a repeat violation within six months following the date of issuance of the 30-day notice, then you can give him a 20-day non-curable notice to terminate the tenancy.

Question: If I give 24-hour notice for a dog and they correct the situation by removing the dog but the same dog or substantially the same offense occurs in 3 months what does the landlord do?

Answer:  You don't say why you want to issue a 24-hour notice for the dog.  It must be serious, such as a real threat or actual damage to a person in the park (other than the pet owner).  The applicable statute is ORS 90.396(2) which provides:  

"If the cause for a termination notice *** is based upon the acts of the tenant's pet, the tenant may cure the cause and avoid termination of the tenancy by removing the pet from the premises prior to the end of the notice period.  The notice must describe the right of the tenant to cure the cause. If the tenant returns the pet to the premises at any time after having cured the violation, the landlord, after at least 24 hours' written notice specifying the subsequent presence of the offending pet, may terminate the rental agreement and take possession (of the space).

In those cases in which the offence is not sufficient to issue a 24-hour notice you have two other options: (a) Fine the resident under the Pet Agreement, if one has been entered into; or (b) issuance of the 30-day curable 30-day notice if your rules have been violated.  

[1]Note, the "substantial damage” portion of this statute says "…on more than one occasion.”

Answer: A temporary occupant is not supposed to be paying the rent. You are not allowed to screen for the occupant’s ability to pay, because they are not a tenant. Your acceptance of rent from the occupant creates an appearance that the occupant is really a tenant. Secondly, the law says that a temporary occupant may not live in the home unless there is a tenant there as well. Accordingly, if you accept rent from the temporary occupant in the absence of the tenant living there, it could create a situation where you have waived the temporary occupant status, and are now treating him as a full time tenant. Here are the rules under the temporary occupancy statute ORS 90.275: • The temporary occupant: o Is not a tenant entitled to occupy the dwelling unit to the exclusion of others; and o Does not have the rights of a tenant. • The temporary occupancy agreement may be terminated by: o The tenant without cause at any time; and o The landlord only for cause that is a material violation of the temporary occupancy agreement. • The temporary occupant does not have a right to cure a violation that causes a landlord to terminate the temporary occupancy agreement. • Before entering into a temporary occupancy agreement, a landlord may screen the proposed temporary occupant for issues regarding conduct or for a criminal record. The landlord may not screen the proposed temporary occupant for credit history or income level. • A temporary occupancy agreement: o Must expressly include the above requirements; o May provide that the temporary occupant is required to comply with any applicable rules for the premises; and o May have a specific ending date. • The landlord, tenant and temporary occupant may extend or renew a temporary occupancy agreement or may enter into a new temporary occupancy agreement. • A landlord or tenant is not required to give the temporary occupant written notice of the termination of a temporary occupancy agreement. • The temporary occupant shall promptly vacate the dwelling unit if a landlord terminates a temporary occupancy agreement for material violation of the temporary occupancy agreement or if the temporary occupancy agreement ends by its terms. o Except in cases of discrimination (ORS 90.449) a landlord may terminate the tenancy of the tenant if the temporary occupant fails to promptly vacate or if the tenant materially violates the temporary occupancy agreement. • A temporary occupant is treated as a squatter if they continue to occupy the home after a tenancy has ended or after the tenant revokes permission for the occupancy by terminating the temporary occupancy agreement. • A landlord may not enter into a temporary occupancy agreement for the purpose of evading landlord responsibilities; • A tenant may not become a temporary occupant in the tenant’s own dwelling unit; • A tenancy may not consist solely of a temporary occupancy. Each tenancy must have at least one tenant. In your case, it would appear that you could either terminate the tenant’s tenancy since they vacated leaving the temporary occupant to occupy alone, a violation of the statute, or terminate the temporary occupant for the same reason. I would try a written notice to the temporary occupant, to see if they will voluntarily vacate. If they refuse, then you should retain counsel and proceed to evict him as a squatter. Do not, under any circumstances, accept rent from the temporary occupant.

Answer. Welcome to the Nanny State! I agree this is a frustrating situation for landlords.  I believe rule No. 1 is to pick your shots. By that I mean, you want to look at this in the same way a judge or jury would.  Does it pass the “smell test”?  – pun intended. 

To me it does not. This sounds like a case in which you’ve got a pretty good paper trail. But someone has to blink.  If you fold on this, bad precedent is set. Here she’s asking for two extraservice animals. By this rationale, the two pet policy means nothing, and she could gather another six animals and make the same claim.  I believe you should consult your attorney to find out what he/she recommends.   

From where I sit, I think you could take at least one more step, without this going nuclear.  You may want to consider issuing a 30-day notice to vacate, citing the rule and what she needs to remedy it, i.e. remove two of the pets.  

At that time, the issue will come to a head. Will she go to some advocacy attorney group who says they will fight you for free? Will she fold? Will she try to compromise?  There is a Roman saying that if you want peace, prepare for war.  In other words, if you show her you mean business, she may take a more realistic look at her position. Until there is a show of force, she has the upper hand.  If she backs off, there may be an opportunity to find a solution, e.g. and agreement to re-home the pets with a relative. Any solution that is reached should be in writing, and you should have your attorney prepare it.

If she pushes back, and has some legal group threating a fight, you can then decide whether to hold ‘em or fold em’.  Remember, litigation doesn’t happen overnight. You will, at worst, get a threatening letter or two, before something happens. If you don’t want the fight, then walk away.  Good luck!  By the way, during this dispute, if you intend to issue a 30-day letter, you should not also be accepting rent.

Answers:  One caveat: The answers below are based upon some quick basic research and should not be relied upon as a complete legal answer to a complicated issue. You should verify the information with your own legal counsel.

1. Is it illegal to require an SSN on a rental application?  No, it is not illegal to “require” an SSN on a rental application provided every application requires an SSN. Only requiring SSNs from certain applicants likely would run afoul of Fair Housing Laws if the group requested may be a protected class. The take-away is (as I have said repeatedly in the past) if you are going to require it, you must require it of everyone, regardless of protected class.  You cannot pick and choose who must provide their SSN number. 

2. Is it a violation of the Fair Housing Laws to deny an applicant because they do not have an SSN?  This is a grey area. While it is not explicitly illegal to deny an applicant because they do not possess an SSN, if denials seem to only occur to certain groups of people, it could trigger a Fair Housing complaint. 

The Fair Housing Act prohibits discrimination against certain protected classes, one of which is national origin. The Fair Housing Council of Oregon (FHCO) encourages landlords to consider documentation other than SSNs, if possible:

“It is our agency’s position that the refusal to review alternative documentation when a Social Security Number is not available will have a negative and disparate impact[1]on individuals whose national origin is not the United States, thereby having a disparate impact on that protected class.” 

A disparate impact may arise when negative outcomes affect a particular protected class, even though they are not a product of explicit discriminatory intent. A recent example cited by the FHCO was an apartment complex in Beaverton which prohibited the cooking of curry on the premises. The prohibition was arguably without specific discriminatory intent because it was based on the difficulty of reliably cleaning apartments where curry had been frequently cooked (it was compared to the impact of tobacco smoke). However, because only certain groups of people, mostly Indian, were likely to cook curry with any frequency in their homes, the rule had a discriminatory impact on people of a particular national origin.[2]

FHCO advocates that landlords consider accepting alternate forms of identification (e.g., ITIN) if they, or their screening companies, can obtain similar, reliable information regarding rental risk as they would be able to with an SSN. This may take the form of asking for more assurances from a potential renter, including references to former landlords to show rental history, utility bills to show timely payments, etc. The FHCO also acknowledges that additional screening steps to compensate for a lack of SSN may have an increased cost, and that increased cost may be passed on to the applicant. [Query: But doesn’t that, in itself, create a disparate impact?! ~PCQ]

Although an ITIN cannot be used in place of an SSN for pulling a credit report, however, people with ITINs can build and maintain credit. Credit bureaus may be able to provide a report based on other identifying information (name, date of birth, employment history) however it may not be as accurate as one tied to an SSN, or the credit bureau may not reliably be able to pull together information for a full credit report without the SSN. It appears that methods of pulling a credit report online will not allow an ITIN to be used, but a consumer may write to the credit bureaus and attempt to pull their own credit report with their other identifying information. FHCO admits that at this time tenant screening companies likely cannot gather credit information without an SSN.

In short, currently it is not explicitly illegal to require an SSN for a rental application, nor is it explicitly illegal to deny an applicant because they do not have an SSN. However, a landlord may expose themselves to potential FHA liability if their facially neutral rules end up having an unintended (i.e., “disparate “) impact on a particular identifiable group (i.e., a “protected class”). 

///

///

Oregon’s BOLI states that while you do have the right to select the tenants you want, refusals:

“…to rent cannot be based on a protected class. The protected classes include race/color, religion, sex, physical or mental disability, marital status, national origin, and familial status. All applicants must be given the same rental requirements and judged by the same standards.”[3]

Specifically, regarding Social Security Numbers, the FHCO suggests not outright denying for lack of SSN, but instead saying: “show me what you can” and then seeing if the documentation provided and the information that can be gleaned by the screening company is sufficient to give the landlord enough data to accept or deny an application.

For more information:

• http://fhco.org/index.php/discrimination-in-oregon/protected-classes/national-origin/screening-options

• https://www.multifamilypro.com/playing-the-numbers…a-fair-housing-gamble/

3. Can you use an SSN for identification?  Social Security Cards are commonly used as one of a two-piece identification program. For example, the Oregon State ID and Driver’s License program accepts it as a primary document (provided you also have a document showing your date of birth)[4], along with other forms of identity like Passports and Driver’s Licenses. 

The concern with Social Security Cards is that they do not have enough identifying information to be useful as a single or primary method of ID (e.g., a photo, a date of birth, other data that corroborates that it correctly identifies the holder). If it is one of two pieces of information, that does not appear to be a problem. FHCO provides a list of alternative documents that a prospective renter might produce, and a landlord may consider accepting.

Disparate impact holds that certain practices in employment, housing, etc., may be considered discriminatory under the Act, if they have a disproportionately "adverse impact" on certain members of a protected class, i.e. those falling into the following groups: Race, color, religion, sex, disability, familial status or national origin.  The simplest explanation of how disparate impact works is by the following example: 

A landlord may be found to have discriminated against a prospective tenant, not because of an intentional discriminatory act, such as rejecting him or her based upon race or religion, but unintentionally, because the landlord relied upon a perfectly legal basis, except that it had a disproportionately adverse impact on members of a protected class.  Proof of the “disproportional impact” is usually based upon some statistical correlation showing that a certain class of protected persons are impacted more than others. In other words, unintentional discrimination can be found to be a violation of the Act.

According to the Memo (footnotes omitted): 

Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers. While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability). Additionally, intentional discrimination in violation of the Act occurs if a housing provider treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability).

The purpose of the Memo is to issue guidance, mostly by way of examples and prior case law, in how the use of criminal history during the tenant-screening process, may, and may not, trigger a disparate impact result. 

MHCO has closely reviewed the Memo and will be providing further guidance shortly. In the meantime, this article is a “heads-up” to landlords and managers regarding the use of criminal background checks in light of the Memo. It is preliminary only, and not intended as “legal advice”. MHCO members should consult their own legal counsel for advice relating to their particular situation. 

Summary of Thoughts and Suggestions.  Here are some tips based upon information from the Memo: 

1. 1.    Beware of testers, calling over the phone and asking if you will rent to persons with a criminal background. Be careful about answering these blind calls with a “yes” or “no”. Make sure callers understand that no rental decisions are made in advance of reviewing all relevant background information, including a criminal background report. Encourage the caller to either come to the office and pick up the necessary paperwork, or if they prefer, send it to them at their provided address. 

1. 2.    Ultimately, members should plan on making adjustments in their rules and application process.  MHCO will elaborate on this further in a future article.

1. 3.    Do not have a rule or policy that treats arrests, with no conviction, the same as a conviction. If you currently have such a rule, it should not be enforced.

1. 4.    Do not have a blanket guideline providing, for example, that conviction for any crime is an automatic denial.

1. 5.    Be sure that all rules or policies concerning criminal records are uniformly enforced – no exceptions.  However, note No. 7 below. You should avoid a policy saying that all persons with a felony are automatically disqualified. There is a world of difference between an ex-felon who served time for embezzlement ten years ago and has been a contributing member of society ever since vs. an ex-felon who served time for aggravated battery, and has been in and out of jail for similar violence over the past five years.

1. 6.    If possible, evaluate all other rental history, such as prior tenancies, employment, credit, income and affordability, before even going to the results of a criminal background check. If the prospective tenant does not pass one or more of these criteria, then the rejection can be based on that, thus avoiding the use of criminal background reports and disparate impact issues entirely.

1. 7.    In evaluating an applicant’s criminal history, do not use a “one size fits all” approach. There are several gradations of severity. Additional issues need to be addressed before making a decision to reject a prospective tenant based upon criminal history. For example:

1. 1. a.    How long ago was the conviction? (Convictions over 6-7 years old, with no further convictions, in most cases should probably not be used as the basis for a denial (excluding registered sex offenders, or those convicted for violent crimes).

1. 1. b.    What has the person been doing since release?

1. 1. c.    Has the person been convicted once, or on multiple occasions?

1. 1. d.    What was the nature and severity of the crime? 

1. 1. 8.    Note that according to the Memo, a refusal to rent to an applicant who has a conviction for one or more drug crimes involving the manufacture or distribution (not mere possession) of a federally defined controlled substance is immune from a disparate impact claim. In other words, a landlord or manager may legally base the refusal to rent to a prospective tenant based upon his or her conviction for manufacture or distribution will not result in a violation of the Act, based upon disparate impact. Per the Memo: “Section 807(b)(4) of the Fair Housing Act provides that the Act does not prohibit ‘conduct against a person because such person has been convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).’”

1. 1. 9.    ORS 90.303 (Evaluation of Applicant) addresses some of the same issues as in the Memo, but not all. And where there is similarity, Oregon law does not go as far as the Memo on the issue of criminal records and disparate impact. Oregon’s statute provides:

(1) When evaluating an applicant, a landlord may not consider an action to recover possession pursuant to ORS 105.105 to 105.168 (Oregon’s eviction statutes – PCQ) if the action:

      (a) Was dismissed or resulted in a general judgment for the applicant before the applicant submits the application. This paragraph does not apply if the action has not resulted in a dismissal or general judgment at the time the applicant submits the application.

      (b) Resulted in a general judgment against the applicant that was entered five or more years before the applicant submits the application.

(2) When evaluating the applicant, a landlord may not consider a previous arrest of the applicant if the arrest did not result in a conviction. This subsection does not apply if the arrest has resulted in charges for criminal behavior as described in subsection (3) of this section that have not been dismissed at the time the applicant submits the application.

(3) When evaluating the applicant, the landlord may consider criminal conviction and charging history if the conviction or pending charge is for conduct that is:

     (a) A drug-related crime;

     (b) A person crime;

     (c) A sex offense;

     (d) A crime involving financial fraud, including identity theft and forgery; or

     (e) Any other crime if the conduct for which the applicant was convicted or charged is of a nature that would adversely affect:

         (A) Property of the landlord or a tenant; or

         (B) The health, safety or right to peaceful enjoyment of the premises of residents, the landlord or the landlord’s agent. 

1. 1. 10.    Readers should not assume that compliance with ORS 90.303 means that a denial of tenancy could not result in a disparate impact claim.  In other words, landlords and managers should be extra-cautious in this minefield, since where federal law is more restrictive (i.e. burdensome on landlords), it will likely pre-empt state law.  

Here are some considerations to keep in mind:

1. 1. a.    The Memo and ORS 90.303 both prohibit screening applicants for arrests, regardless of the conduct that led to the arrest;
   2. b.    ORS 90.303 says that an arrest which has not been dismissed, but is still pending (i.e. a conviction is still possible) may be considered in tenant screening. The HUD Memo does not address this issue – so we don’t know what the feds would say. Accordingly, it may be prudent to take a more balanced approach in these situations. For example, rather than having a blanket policy that a tenant will automatically be rejected if their charge is still pending, landlords and managers should evaluate the matter based upon (a) When the matter will be resolved, e.g. a week, a month, or a year? (b) What was the charge? (c) If convicted, would the applicant automatically be denied?  As noted above, the whole issue of criminal background information is an element of the application process that need not be fully vetted, if, regardless of the crime, its severity or recency, the person would fail the application process on other grounds. If so, there is no need to rely upon the community’s criminal background policy to vet an applicant. However, a word of caution here: Be prudent when selecting a basis for denial. Using a weak reason, versus a stronger one, can be viewed as pretextual if the applicant is a member of a protected class. In other words, beware of using a credit basis for denial if it is “iffy” and exclude the criminal background basis. In these cases, landlords and managers should consult legal counsel; it may be best to use both bases. 
   3. c.    ORS 90.303 says that a landlord may consider a conviction for certain conduct, generally relating to threats of violence, drugs, sex, or property damage, which would indicate risks to fellow tenants or the landlord. However, the HUD Memo is broader and more subtle (i.e. it demands an evaluation beyond a one-size-fits-all rejection policy). In short, do not rely solely on ORS 90.303, to the exclusion of the more balanced approach demanded by the Memo.
   4. d.    Unlike the HUD Memo, ORS 90.303 does not address how long ago the conviction occurred, or require an evaluation of what the applicant had been doing since the conviction. (i.e. evidence of rehabilitation). The General Landlord-Tenant Coalition could not reach agreement on whether to use a five or seven year standard in the statute, nor whether multiple convictions should be dealt with differently than single ones. Accordingly, our statute is silent on this. Footnote 34 of the Memo cites to the following authority, which mentions six to seven years: 

“(S)ee, Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology and Pub. Pol’y 483 (2006) (reporting that after six or seven years without reoffending, the risk of new offenses by persons with a prior criminal history begins to approximate the risk of new offenses among persons with no criminal record).”

Conclusion.  Landlords and managers could be forgiven for feeling they are caught in a dilemma. If they follow Oregon law, it may not be enough – but at least the statutes are black and white. And while it may be sufficient to follow federal law, today that requires a “disparate impact” analysis, which, at best, is a shifting and nuanced set of “guidelines”. Perhaps most unsettling, now a good faith effort to comply with the tenant application process is not enough. Unintentional discrimination, now known under the more benign title, “disparate impact”, is more of a concept than a law, since it does not depend upon one’s overt actions,  - however well intended - but upon the long term “consequences” of those actions based upon inferred and empirical statistics derived from academic writings, analysis, surveys, footnotes, and demographics. Is this something landlords and managers can or should be expected to fully appreciate and understand?  The best we can do today is to keep alert to the issue. MHCO will have more on this minefield in coming articles.

Answer: After sending or delivering the 45-day abandonment letter, a landlord is required to store the home on the rented space and shall exercise reasonable care for it; and is entitled to reasonable or actual storage charges and costs incidental to storage or disposal. The storage charge may be no greater than the monthly space rent last payable by the tenant.

If a lienholder makes a timely response to a notice of abandoned personal property and so requests, the landlord is required to enter into a written storage agreement with the lienholder providing that the home may not be sold or disposed of by the landlord for up to 12 months. The storage agreement entitles the lienholder to store the home on the previously rented space during the term of the storage agreement, but does not entitle anyone to occupy it.

Note that the lienholder's right to a storage agreement arises upon the failure of the tenant or, in the case of a deceased tenant, the personal representative, designated person, heir or devisee to remove or sell the dwelling or home within the allotted time.

The lienholder must enter into the proposed storage agreement within 60 days after the landlord gives it a copy of the storage agreement. It is recommended that landlords include the storage agreement with the lienholder's copy of the 45-day letter, since the right to storage fees does not vest until the letter has been sent. The sooner the better.

The lienholder enters into a storage agreement by signing a copy of it and personally delivering or mailing the signed copy to the landlord within the 60-day period. The storage agreement may require, in addition to other provisions agreed to by the landlord and the lienholder, that:

• The lienholder make timely periodic payment of all storage charges accruing from the commencement of the 45-day period.
• A storage charge may include a utility or service charge, if limited to charges for electricity, water, sewer service and natural gas and if incidental to the storage of personal property.
• The storage charge may not be due more frequently than monthly;
• The lienholder pay a late charge or fee for failure to pay a storage charge by the date required in the agreement, if the amount of the late charge is no greater than for late charges imposed on other tenants in the community;
• The lienholder must thereafter maintain the home and space in a manner consistent with the rights and obligations described in the former tenant's rental agreement;
• The lienholder must repair any defects in the physical condition of the home that existed prior to into the storage agreement, if the defects and necessary repairs are reasonably described in the storage agreement and, for homes that were first placed on the space within the previous 24 months, the repairs are reasonably consistent with community standards in effect at the time of placement.
• The lienholder shall have 90 days after entering into the storage agreement to make the repairs. Failure to make the repairs within the allotted time constitutes a violation of the storage agreement and the landlord may terminate it by giving at least 14 days' written notice to the lienholder stating facts sufficient to notify it of the reason for termination. Unless the lienholder corrects the violation within the notice period, the storage agreement terminates and the landlord may sell or dispose of the property without further notice to the lienholder.
• A landlord may increase the storage charge if the increase is part of a community-wide rent increase for all tenants, the notice is given in accordance with ORS 90.600 (1) (the rent increase statute).

Note that during the term of the storage agreement the lienholder has the right to remove or sell the home. Selling the home includes a sale to a purchaser who wishes to leave it on the space and becomes a tenant, so long as the prospective tenant is approved by the landlord pursuant to ORS 90.680 (the tenant sale and approval process). The landlord may condition approval for occupancy of any purchaser upon payment of all unpaid storage charges and maintenance costs.

If the lienholder violates the storage agreement (whether by failure to maintain the space or pay the storage fees), the landlord may terminate it by giving at least 90 days' written notice to the lienholder stating facts sufficient to notify the lienholder of the reasons for the termination. Unless the lienholder corrects the violation within the notice period, the storage agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the lienholder.

After a landlord gives a termination notice for failure of the lienholder to pay a storage charge and the lienholder corrects the violation, if the lienholder again violates the storage agreement by failing to pay a subsequent storage charge, the landlord may terminate the agreement by giving at least 30 days' written notice to the lienholder stating facts sufficient to notify the lienholder of the reason for termination. Unless the lienholder corrects the violation within the notice period, the agreement terminates and the landlord may sell or dispose of the property without further notice to the lienholder.

A lienholder may terminate a storage agreement at any time upon at least 14 days' written notice to the landlord and may remove the property from the facility if the lienholder has paid all storage charges and other charges as provided in the agreement.

Upon the failure of a lienholder to enter into a storage agreement or upon termination of the agreement, unless the parties otherwise agree or the lienholder has sold or removed the property, the landlord may sell or dispose of the property without further notice to the lienholder.

The abandonment statute, ORS 90.675, does not directly address you question about what happens if a landlord has followed the above protocols and the lienholders rights have been legally terminated. It is my opinion that the language saying that the landlord may sell or dispose of the property without further notice to the lienholder should not be construed as if the remaining rules (regarding public or private sale, etc.) no longer apply to the lienholder. The landlord does not have to re-issue another 45-day letter, but should continue to follow the remaining sale/dispose protocols described in the statute, and should still recognize the rights of the lienholder to notification of the sale under ORS 90.725(10), and to any available proceeds pursuant to the distribution rules found at ORS 90.675(13).

Answer: After sending or delivering the 45-day abandonment letter, a landlord is required to store the home on the rented space and shall exercise reasonable care for it; and is entitled to reasonable or actual storage charges and costs incidental to storage or disposal. The storage charge may be no greater than the monthly space rent last payable by the tenant.

If a lienholder makes a timely response to a notice of abandoned personal property and so requests, the landlord is required to enter into a written storage agreement with the lienholder providing that the home may not be sold or disposed of by the landlord for up to 12 months. The storage agreement entitles the lienholder to store the home on the previously rented space during the term of the storage agreement, but does not entitle anyone to occupy it.

Note that the lienholder's right to a storage agreement arises upon the failure of the tenant or, in the case of a deceased tenant, the personal representative, designated person, heir or devisee to remove or sell the dwelling or home within the allotted time.

The lienholder must enter into the proposed storage agreement within 60 days after the landlord gives it a copy of the storage agreement. It is recommended that landlords include the storage agreement with the lienholder's copy of the 45-day letter, since the right to storage fees does not vest until the letter has been sent. The sooner the better.

The lienholder enters into a storage agreement by signing a copy of it and personally delivering or mailing the signed copy to the landlord within the 60-day period. The storage agreement may require, in addition to other provisions agreed to by the landlord and the lienholder, that:

• The lienholder make timely periodic payment of all storage charges accruing from the commencement of the 45-day period.
• A storage charge may include a utility or service charge, if limited to charges for electricity, water, sewer service and natural gas and if incidental to the storage of personal property.
• The storage charge may not be due more frequently than monthly;
• The lienholder pay a late charge or fee for failure to pay a storage charge by the date required in the agreement, if the amount of the late charge is no greater than for late charges imposed on other tenants in the community;
• The lienholder must thereafter maintain the home and space in a manner consistent with the rights and obligations described in the former tenant's rental agreement;
• The lienholder must repair any defects in the physical condition of the home that existed prior to into the storage agreement, if the defects and necessary repairs are reasonably described in the storage agreement and, for homes that were first placed on the space within the previous 24 months, the repairs are reasonably consistent with community standards in effect at the time of placement.
• The lienholder shall have 90 days after entering into the storage agreement to make the repairs. Failure to make the repairs within the allotted time constitutes a violation of the storage agreement and the landlord may terminate it by giving at least 14 days' written notice to the lienholder stating facts sufficient to notify it of the reason for termination. Unless the lienholder corrects the violation within the notice period, the storage agreement terminates and the landlord may sell or dispose of the property without further notice to the lienholder.
• A landlord may increase the storage charge if the increase is part of a community-wide rent increase for all tenants, the notice is given in accordance with ORS 90.600 (1) (the rent increase statute).

Note that during the term of the storage agreement the lienholder has the right to remove or sell the home. Selling the home includes a sale to a purchaser who wishes to leave it on the space and becomes a tenant, so long as the prospective tenant is approved by the landlord pursuant to ORS 90.680 (the tenant sale and approval process). The landlord may condition approval for occupancy of any purchaser upon payment of all unpaid storage charges and maintenance costs.

If the lienholder violates the storage agreement (whether by failure to maintain the space or pay the storage fees), the landlord may terminate it by giving at least 90 days' written notice to the lienholder stating facts sufficient to notify the lienholder of the reasons for the termination. Unless the lienholder corrects the violation within the notice period, the storage agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the lienholder.

After a landlord gives a termination notice for failure of the lienholder to pay a storage charge and the lienholder corrects the violation, if the lienholder again violates the storage agreement by failing to pay a subsequent storage charge, the landlord may terminate the agreement by giving at least 30 days' written notice to the lienholder stating facts sufficient to notify the lienholder of the reason for termination. Unless the lienholder corrects the violation within the notice period, the agreement terminates and the landlord may sell or dispose of the property without further notice to the lienholder.

A lienholder may terminate a storage agreement at any time upon at least 14 days' written notice to the landlord and may remove the property from the facility if the lienholder has paid all storage charges and other charges as provided in the agreement.

Upon the failure of a lienholder to enter into a storage agreement or upon termination of the agreement, unless the parties otherwise agree or the lienholder has sold or removed the property, the landlord may sell or dispose of the property without further notice to the lienholder.

The abandonment statute, ORS 90.675, does not directly address you question about what happens if a landlord has followed the above protocols and the lienholders rights have been legally terminated. It is my opinion that the language saying that the landlord may sell or dispose of the property without further notice to the lienholder should not be construed as if the remaining rules (regarding public or private sale, etc.) no longer apply to the lienholder. The landlord does not have to re-issue another 45-day letter, but should continue to follow the remaining sale/dispose protocols described in the statute, and should still recognize the rights of the lienholder to notification of the sale under ORS 90.725(10), and to any available proceeds pursuant to the distribution rules found at ORS 90.675(13).

Answer.  By way of disclaimer, ORS 90.630 was amended in the 2019 Legislative Session, and this bifurcated violation scheme (separate/distinct conduct vs. repetitive/ongoing conduct) is brand new. MHCO’s 2020 violation forms make an effort to deal with this, but largely by paraphrasing the statute. In short, the concept and statute can be confusing, as your question implies.

Although I did not sit on the Landlord-Tenant Coalition meetings discussing this change, I believe I understand the rationale for doing so, which is very legitimate: Before the 2019 legislation, if a person violated the rental agreement, the rules, or a law or ordinance, the only recourse was to issue a 30-day notice requiring that the act (e.g. noise, unruly conduct) or omission (e.g. failure to maintain the space) cease by the end of the 30^thday.  While that approach works satisfactorily in most instances, there was always an open question whether, on single violations (e.g. yelling at the neighbors) could reoccur for the next 29 days and stop on the 30^th, thereby avoiding termination of the tenancy, since it was “cured” within 30 days.

I always maintained that the statute permitted non-curable termination if the misconduct re-occurred within the 30 days, but the statute was not clear on the point, and I suspect others did not agree with me.

So the purpose of the 2019 amendment to ORS 90.630 was, in part, I believe, to address repeat violations within the 30-day period. To the extent it addresses the conundrum of allowing multiple isolated violations to continue for 29 days without termination, I believe it did a very good job.

Now to the new statute, ORS 90.630, which seems to raise the question you’re asking – since repetitive or continuing violations cannot involve pets or assistance animals; does that mean you cannot use Form 43 for an unauthorized pet?

My interpretation of the statute is that an “unauthorized pet” does not fall into the same category as a “pet” or “assistance animal” that has been previously approved by management. In the latter case, management should have a Pet Agreement (but not for the assistance animal) governing violations which would trigger a fine.[1]

So I believe you coulduse either notice here. But since treating it as a continuing violation would permit the offender to keep the animal in the community for 29 days and remove it by the 30^thday to avoid termination of the tenancy. I don’t believe that is what you want.

My view is that the preferred approach is to treat the violation as a single event: i.e. bringing the pet into the community when it was never approved.  This gives you the fastest recourse in getting the pet removed, at the risk of a noncurable termination of the tenancy.

This is my opinion only, and based upon what I believe to be the rationale of the revised ORS 90.630; there are others that might disagree. So check with your own legal advisor for a definitive opinion.

APPLICATION OF PORTLAND’S NEW TENANT ORDINANCES

TO MANUFACTURED HOUSING COMMUNITIES

By

Phillip C. Querin, MHCO Legal Counsel

July 1, 2019

Discussion: The Portland Ordinance, 30.01.085 (“Portland Renter Additional Protections”) here, has identified the occurrence of certain events that now require landlords to pay Relocation Assistance (“RA”) to tenants. 

[Reference below to the “Ordinance” will refer to 30.01.085; references to the state law, ORS Chapter 90, will be referred to as the “Act”; and references to the new state law governing rent increases, will be referred to as “SB 680”.]  

The Ordinance applies to all rented Dwelling Units[1]within Portland’s city limits, whether they are managed by an owner, a sublessor, or property management company.  However, not all properties that list Portland as their mailing address are located within the city limits. 

“Portland Maps”is the official city site used to determine properties subject to the RA policy. See, https://www.portlandmaps.com/. To verify the location of a rental property, click on the Portland Maps link and enter the property address. Once it appears, there are related several links, one of which is “Jurisdiction”. If the Jurisdiction link states "Portland," the rental property is subject to the mandatory RA policy, unless otherwise exempted, as discussed below.

EVENTS TRIGGERING RELOCATION ASSISTANCE

1. No-Cause Eviction
   1. Landlord must pay Relocation Assistance (“RA”) to Tenant at least 45 days before termination of the tenancy
2. Increase of 10% or more in Rent or “Associated Housing Costs”[2]
   1. Tenant must give written notification to Landlord requesting RA within 45 days of Rent Increase Notice
      1. Landlord must pay RA within 31 days of Tenant’s request for RA
3. Substantial Change of Lease Terms
   1. Tenant must give written notification to Landlord requesting RA within 45 days of substantial change
      1. Landlord must pay RA within 31 days of Tenant’s request for RA
4. Non-Renewal of Lease
   1. Landlord must pay RA to Tenant at least 45 days before termination of the tenancy

Note:  With the exception of No. 2 (Rent increases of 10% or more) and No. 3 (Substantial Change of Lease Terms) the two remaining events do notrequire the tenant to make a written request for RA. Payment is simply expected to occur within the required time from the triggering event. 

AMOUNT OF RELOCATION ASSISTANCE

1. $2,900 for a studio or single room occupancy (“SRO”) Dwelling Unit
2. $3,300 for a one-bedroom Dwelling Unit
3. $4,200 for a two-bedroom Dwelling Unit 
4. $4,500 for a three-bedroom or larger Dwelling Unit. 

Note:The only time RA will be payable by a landlord in a manufactured housing community is if they are the owner of (a)a manufactured home or (b)an RV that is being rented out. Presumably, the amount of the RA would be based upon whether it is an SRO or a 1, 2, or 3-bedroom unit. 

Note:  If a Landlord is paying RA required under the Act, and Relocation Assistance is alsorequired by the Ordinance for the same Termination Notice, the Relocation Assistance required by the Ordinance may be reduced by the relocation assistance required by the Act if both payments are paid at the same time and as a single payment.[3]

TENANT’S RECEIPT OF RELOCATION ASSISTANCE AFTER RENT INCREASE OF 10% OR MORE

1. Following receipt of the RA, the tenant has 6 monthsfrom the date of the increase to either: 
   1. Pay it back, and thereafter become obligated to pay the increased rent in accordance with notice of increase; or 
   2. Provide the landlord with a notice to terminate the rental agreement in accordance with the Act.  

1. In the event the tenant fails to pay the RA back to the landlord or provided the landlord with the termination notice on or before the expiration of the six-month relocation period, the tenant will be in violation of the ordinance.

Note:A violation of any law or ordinance is also breach under the MHCO rental agreement or lease, for which landlord may issue a 30-day curable notice under ORS 90.630. Accordingly, it appears this would be one method of commencing recovery of the RA should the tenant fail to terminate and repay the RA. The other would be to file a claim in the county Small Claims Court.

Note:The other three triggering events for RA assume the tenancy is terminated, so tenant has no option to accept or reject the landlord’s action - therefore no repayment issue. However, in the event of a substantial change in the lease terms, it would seem possible that the landlord and tenant might  reach agreement to continue the lease under the amended terms, in which case, the tenant would be required to return the RA, just the same as a rent increase of 10% or more.

EXEMPTIONS FROM PAYING RELOCATION ASSISTANCE

Relocation Assistance does not apply to the following, so long as the Landlord has submitted a required exemption application form to Portland Housing Bureau for which it has issued an exemption acknowledgement letter, a copy of which the Landlord must be provided to the Tenant:

1. Rental agreement for week-to-week tenancies; 
2. Tenants that occupy the same dwelling unit[4]as the landlord;
3. Tenants that occupy one dwelling unit in a Duplex where the Landlord’s principal residence is the second Dwelling Unit in the same Duplex;
4. Tenants that occupy an Accessory Dwelling Unit that is subject to the Act in the City of Portland so long as the owner of the Accessory Dwelling Unit lives on the site;
5. A Landlord who temporarily rents out their principal residence during an absence of not more than 3 years;
6. A Landlord who temporarily rents out their principal residence during the Landlord’s absence due to active duty military service;
7. A Dwelling Unit where the Landlord is terminating the Rental Agreement in order for an Immediate Family member[5]to occupy the Dwelling Unit;

8.    A Dwelling Unit regulated or certified as affordable housing by federal, state or local government is exempt from paying Relocation Assistance for a Rent increase of 10 percent or more within a rolling 12-month period:
a. so long as such increase does not increase a Tenant’s portion of the Rent payment by 10 percent or more within a rolling 12-month period; or 
b. in Lease Agreements where the Rent or eligibility is periodically calculated based on the Tenant’s income or other program eligibility requirements and a Rent increase is necessary due to program eligibility requirements or a change in the Tenant’s income.
This exemption does not apply to private market-rate Dwelling Units with a Tenant who is the recipient of a federal, state, or local government voucher;
Note:This exemption applies to Rent Increases and does not apply to Termination Notices;

1. A Dwelling Unit subject to the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970;
2. A Dwelling Unit rendered immediately uninhabitable not due to the action or inaction of a Landlord or Tenant; 
3. A Dwelling Unit rented for less than 6 months with appropriate verification of the submission of a demolition permit prior to the Tenant renting the unit;
4. A Dwelling Unit where the Landlord has provided a Fixed Term Tenancy and notified the Tenant prior to occupancy, of the Landlords intent to sell or permanently convert the Dwelling Unit to a use other thanas a Dwelling Unit subject to the Act.

Note:Remember that before being entitled to an exemption, the landlord needs to provide a copy of the Portland Housing Bureau’s acknowledgment letter to the Tenant.

LANDLORD DUTIES FOLLOWING PAYMENT OF RELOCATION ASSISTANCE

1. Landlord must include a Notice of Tenant’s Rights and Obligations (the “Notice”) and the eligible amount of Relocation Assistance with issuance of the following:
   1. Termination Notice;
   2. AnyRent Increase Notice;
   3. Relocation Assistance payment.

Note:MHCO has developed a form for the Notice.

1.  Landlord must notify the Portland Housing Bureau of all payments to tenants of Relocation Assistance within 30 days of making such payments.  

ADDITIONAL LANDLORD LIABILITY FOR VIOLATION OF ORDINANCE

1. Any Tenant claiming to be aggrieved by a Landlord's noncompliance with the above regulations in the Ordinance, “has a cause of action in any court of competent jurisdiction for Damages and such other remedies as may be appropriate.”
2. Damages include the following:
   1. An amount up to 3 times the monthly Rent; 
   2. Actual damages; 
   3. Relocation Assistance; and
   4. Reasonable attorney fees and costs. 

______________________________________________________

TENANT SCREENING

Discussion: Effective March 1, 2020, the City of Portland’s new screening ordinance (30.01.088 Screening Criteria for Applicants for DwellingUnits) – hereinafter the “Code” – will become law. The administrative rules have not yet been written. The latest draft from the office of Commissioner Eudaly is date February 20, 2019. It is set out below. The Housing Bureau was unable to give me a copy of the final draft. Below is a summary of the February 20, 2019 draft; it is believed that some of the more draconian provisions of the Ordinance were either deleted or softened. 

Note: I have said repeatedly that when screening applicants, a criminal history should be the very last reason to deny an applicant. For example, if the applicant could be denied for financial incapacity, prior references, evictions, etc. it becomes irrelevant whether they have a criminal record. Only use the criminal history as a last resort. 

1. Procedures.In addition to the protections set forth in the Act and Sections 30.01.085 and30.01.087 of the Code, the following procedures and guidelines apply to Landlords when screening an Applicant for residential tenancy in a Dwelling Unit (as defined in theAct).
2. Definitions. For purposes of this Ordinance, unless otherwise defined herein, capitalized terms have the meaning set forth in theAct.
   1. Applicant: An applicant for a Dwelling Unit covered by theAct.
   2. Supplemental Evidence: Any written information in addition to the application, that the Applicant believes to be relevant to the Applicant’s predicted performance as atenant.
   3. Head(s) of Household: Person or persons listed on a lease as the party or parties responsible for paying theRent.
   4. ADACompliant:
   5. OccupancyAgreement:
      1. Applications,Generally.
   6. First-come,First-served
   7. Completed applications must be received and processed on a first-come,first-servedbasis.
   8. All completed applications must be time-stampedto indicate the date and time that an Applicant submitted the application (the “SubmissionDate”).
   9. For applications received during an advertised open application period, a Landlord must provide an Applicant with a written or electronic receipt within one (1) business day of the Submission Date that accurately reflects the Submission Date and assigns the Applicant a queuenumber.
   10. A Landlord is exempt from the requirements of this subsection whenevera lottery system or coordinated access system is used to lease up new residential buildings with rent regulations of 80% AMI orlower.
   11. A Landlord must include the following with everyapplication:
   12. Notice to Applicants of the right to request a reasonable accommodation at any point before, during or after the applicationprocess;
   13. Notice that a Landlord may not deny an application solely because ofa reasonable accommodation request or because of the nature of the accommodationrequested.
   14. Notice to Applicants of their rights under this Section 30.01.088 by including a link to Portland Housing Bureau’s (“PBH”) website and a printed copy of the noticethat PHBcreates.
   15. A complete description of the applicable screeningcriteria.
   16. An opportunity on the application for an Applicant to indicate their disabilitystatus.
   17. A Landlord may only screen Head(s) of Household. Co-applicants that are not responsible for paying the Rent may be screened for criminal history and rental history (only for violation notices issued to the household for conduct of the co- applicant within the last year that demonstrates they created a hostile, unsafe,or harassing environment for other tenants or engaged in discriminatory conduct), pursuant to procedures and guidelines in this Section30.01.088.
   18. May require co-applicants not responsible for paying the Rent to signan Occupancy Agreement if the household application isapproved.
   19. A Landlord that owns less than fifty (50) Dwelling Units within the City of Portland, may refuse acceptance of a completed application only if the Applicant has a verifiable pattern of Rental Agreement violations with the Landlord and the mostrecent of such Rental Agreement violations occurred within the last 365 days.
   20. Any Applicant that self-identifies as mobility challenged on an applicationwithin the first 8 hours of an open application period must be given first priority for any vacant Dwelling Unit that is advertised as ADACompliant.
   21. Any application received earlier than the advertised open application period will be put in the queue immediately following the first 8 hours. If the Dwelling Unit is advertised as ADA Compliant, and the Applicant indicates as mobility challenged, they will still receive placement preference immediately following any other preference application received during the advertised open application period.
3. Advertisement of DwellingUnits.
   1. When publicly advertising for specific vacant Dwelling Units, a Landlord must specify an opening date and time when applications will be accepted and cannot accept applications for those specific units outside of the advertisedperiod.
   2. Except as otherwise prevented from complying due to the format requirements of an advertising service, screening criteria required by a Landlord, or a website address to the criteria, must be included in any public advertisement for available Dwelling Units as well as included on theapplication.
   3. Except as otherwise prevented from complying due to the format requirements of an advertising service, all public advertisements must also include if the Dwelling Unit is ADACompliant.
   4. When advertising newly vacant Dwelling Units, the open application period must be published at least 72 hours prior to the start of the open applicationperiod.
4. Identification.
   1. A Landlord must accept any of the following as forms of identification, or combination thereof, that verify the full name, date of birth, and picture of the applicant:
   2. Valid Social Security Number (SSNCard);
   3. Valid Permanent Resident Alien Registrations ReceiptCard;
   4. ImmigrantVisa;
   5. Individual Taxpayer Identification Number(ITIN);
   6. Non-ImmigrantVisa;
   7. Any other government-issued identification;or
   8. Any other non-government document or combination of documents that would allow verification ofidentity.
   9. A Landlord may not reject an application as incomplete due to the lack of aSocial Security Number(SSN).
   10. A Landlord may not inquire about the immigration status of an Applicantor require that any Applicant provecitizenship.
   11. Income.
   12. A Landlord may not require an income greater than two times the amount ofRent for the Dwelling Unit when costs for utilities are part of theRent.
   13. A Landlord may not require an income greater than two and a half times the amount of the Rent for the Dwelling Unit when costs for at least three essential utilities (such as garbage, sewer, water, or heat) are required to be paid separately by aTenant.
   14. Calculation of the income to rent ratio under thissection:
   15. Must include all sources of an Applicant’s income, including, but not limited to, wages, rent assistance (non-governmental only),verifiable family or friend assistance for at least three months of tenancy, and monetary publicbenefits;
   16. Must subtract from the Rent amount any portion of Rent covered byan Applicant’s local, state, or federal government rent voucher or housing subsidy before calculating the rent ratio;and
   17. Must apply cumulatively among Heads of Household when more thanone adult applies as a group.
   18. A Landlord may include a requirement for a guarantor (family member, friend, non-profit, or government agency as identified by the Applicant) or an Additional Deposit as described in Section 30.01.087 when the Applicant’s income ratio as calculated in the section above falls at or below two times the amount of theRent.
   19. To the extent that a Landlord requires a guarantor or Additional Deposit, the Landlord must allow the Applicant to choose between the twooptions.
   20. A Landlord may not require family or friend guarantor to have income greater than three times the current Rent but can require verifiable employment,verifiable residence within the United States, and no active collections activity for delinquent property or utilitydebt.
   21. A Landlord may not require a guarantor to sign a contract longer than thelength of the initiallease.
   22. ThresholdCriteria.
   23. A Landlord may forgo the mandatory individualized assessment as described in Section H if they adopt a screening-criteria that meets, or is more permissivethan, the thresholds described in the followingsection:
   24. Applicants will not be denied for the followingconditions:
   25. Criminalhistory:
   26. Any arrest that did not result in conviction, unless the resulting charge is pending at the time that theApplicant submits theapplication;
   27. Participation in or completion of a diversion or a deferralof judgmentprogram;
   28. Any conviction that has been judicially dismissed, expunged, voided orinvalidated;
   29. Any conviction for a crime that is no longer illegal in the state ofOregon;
   30. Any conviction or any other determination or adjudication in the juvenile justicesystem;
   31. Any criminal conviction for misdemeanor offenses where the dates of sentencing are older than threeyears;
   32. Any criminal conviction for felony offenses where the dates of sentencing are older than sevenyears;
   33. Credithistory:
   34. Credit score at least500;
   35. Lack of credit history, unless the applicant in bad faith withholds credit history information that mightotherwise form the basis fordenial;
   36. Adverse accounts under$1000;
   37. Property debt from damages in previous tenancyunder

$500;

• Bankruptcy filed by the applicant isclosed;
• Bankruptcy for Chapter 13 filed by the applicant is in an active repaymentplan;
• Medical or education/vocational trainingdebt.
• Rentalhistory:
  • An action to recover possession pursuant to ORS 105.105 to 105.168 if theaction:
    • Was dismissed or resulted in a general judgment for the Applicant before the applicant submits the application;
    • Resulted in a general judgment against the Applicant that was entered three or moreyears before the Applicant submits theapplication;
    • Resulted in a general judgment against the Applicant that was entered fewer than threeyears before the Applicant submits the applicationif:
      • The termination of tenancy upon which the action was based was without cause (no-cause eviction) pursuant to ORS 90.427(Termination of Periodic Tenancies);or
      • The judgment against the Applicant was a default judgment due to a failure toappear, if the Applicant presents credible evidence to the Landlord that the Applicant had already vacated the unit upon which the action was based at the time that notice of the action wasserved.
      • Any information that the Landlord obtains from a verbalor written rental reference with the exception of defaults in Rent, three or more material violations of a Rental Agreement within the last year that resulted in notices issued to the Tenant, outstanding balance due to the Landlord, or lease violations that resulted in a termination with cause.;or
      • Lack of rental history, unless the Applicant in bad faith withholds rental history information that mightotherwise form the basis fordenial.
• If an Applicant provides any Supplemental Evidence regarding criminal historyat the time, they submit their completed application, then the Landlord has to doan

individualized assessment as described in Section H if they intend to deny the application based on criminal history.

1. IndividualizedAssessment.
   1. A Landlord that chooses not to adopt the threshold criteria as set forth above, must conduct an individualized assessment before denying an Applicant for any criteria they haveestablished.
   2. Any Applicant that believes that they may have barriers to any advertised screening criteria shall be allowed to provide, at the time of application submission, all Supplemental Evidence they believe provides a positive offset to thebarriers.
   3. A Landlord has an obligation to consider any such SupplementalEvidence submitted by the Applicant including, but not limited to, thefollowing:
      1. Six or more consecutive months of job or incomestability;
      2. Completion of secondary education or job trainingprograms;
      3. Current enrollment in secondary education of job trainingsprograms;
      4. Current probation or paroleoversight;
      5. Certificate of GoodStanding;
      6. Current payment plan towards creditdebt;
      7. Completion of Rent Well or another tenant educationprogram;
      8. Six or more consecutive months of positive rental payments within thelast year;
      9. Completion of creditcounseling;
      10. Current participation in creditcounseling;
      11. Current participation with a legal or non-profit advocate to clearpast collections;
      12. Legitimate explanation of lack of verifiable credithistory.
      13. The presence of domestic violence as contributing factor to rental issues of concern;
      14. Current payment plan toward outstanding debts owed previouslandlord;
      15. Current case management or peer support services;or
      16. Any other evidence that the Applicant believes has a tangible impact to the specific barriers identified in an Applicant’shistory.
   4. If a Landlord receives the following types of Supplemental Evidence, a Landlord should assume that the presentation of such Supplemental Evidence is a request for a reasonable accommodation under the Fair Housing Act. An applicant reserves the right to use the following information as a request for Individualized Assessment aswell:
      1. Completion of drug or alcoholtreatment;
      2. Current enrollment in a drug or alcohol treatmentprogram;
      3. Completion of psychologicalcounseling;
      4. Current participation in psychological counseling;or
      5. Current case management or peer support services related to disabilityor mentalhealth.
   5. In addition, a Landlord must consider the information from the individualized assessment and Supplemental Evidence in light of the following before denying anApplicant:
      1. The nature and severity of thebarriers;
      2. The number and type of thebarriers;
      3. The time that has elapsed since the date the barriers occurred;and
      4. The age of the individual at the time the barrieroccurred.
2. Appeals.
   1. An Applicant that is denied for residential tenancy by a Landlord using the threshold criteria as described in Section G must have the opportunity toappeal that denial directly to the Landlord basedon:
      1. Incomplete or inaccurate information identified during thescreening process,or
      2. Additional supplementalevidence.
   2. An Applicant must be allowed 30 days, from the date the denial was issued, to request an appeal and submit all evidence related to theappeal.
   3. A Landlord is not required to hold the Dwelling Unit for the Applicant duringthe pendency of the appealprocess.
   4. If the appeal results in the denial being overturned, a Landlord must give the Applicant preference for future vacancies on the same property (with similar screening criteria and similar income ratio) if they apply within the first 4 hoursof an open application period, for up to 3 months from the date of the original appeal determination.
      1. If a denial is successfully appealed, a Landlord must provide a datedletter, signed by the Landlord, documenting the successful appeal that includes specifics about which properties qualify for thepreference.
      2. An Applicant who receives a letter of a successful appeal must attachthat letter to future applications with the same Landlord to receive preference, for up to 3 months from the date of the original appealdetermination.
      3. An Applicant who successfully appeals a denial cannot be charged a screening fee for future applications with the same Landlord, for up to3 months from the date of the original appealdetermination.
      4. If more than one Applicant provides a letter of a successful appeal during an open application period, the Applicants will receive preference inorder of the dates on the letter, with oldest date getting firstpreference.
      5. If there is a conflict between an appeals preference and an accessible unit preference, the accessible unit preference is first, only superseded by an Applicant with both an accessible unit preference and an appealspreference.
      6. If an Applicant applies with an appeal preference, the Landlord may require the Applicant to self-certify that no conditions have changedsince their originalapplication.
   5. A Landlord has the discretion to also maintain a wait list and contact preference applicants (in the order their appeal letter is dated), before advertising a vacant Dwelling Unit to the generalpublic.
3. Denials-General.
   1. An application can be denied without a Landlord first conducting an individualized assessment when an Applicant does not meet basic criteria requirements such as incomplete application, identification, income, or an Applicant has purposefully withheld or misrepresented requiredinformation.
   2. If an Applicant applies as part of a family or group, a Dwelling Unit can be denied to that Applicant individually but not the family or group as a wholeunless they no longer qualify for the income ratio or occupancystandards.
4. Denials-ThresholdCriteria.
   1. When denying an application based on Threshold Criteria, above, a Landlord must provide a written “Notice of Adverse Action” compliant with the Act, the Applicant within two weeks of thedenial.
   2. A Notice of Adverse Action can be provided to the Applicant by either a Landlord or a screeningcompany.
   3. A second denial after an appeal as described in Section I can be written ina manner at the discretion of theLandlord.
5. Denials-IndividualizedAssessment.
   1. When denying an application after performing an Individualized Assessment, a Landlord must provide a written “Notice of Denial” to the Applicant within two weeks of the denial thatincludes:
      1. The specific adverse information that matches the screening criteria information as provided with the application, including detailed information received from a rental reference if it is the basis of thedenial;
      2. The Supplemental Evidence, if any, that the Landlord considered and whether it influenced the decision of the Landlord to deny theapplication;
      3. An explanation of the legitimate, non-discriminatory business interestof the Landlord that justify denial of the application, and how the Supplemental Evidence provided did not address theinterest.
   2. A Notice of Denial can only be issued to the Applicant by theLandlord.
6. AdditionalDeposit.
   1. A Landlord may request an additional security deposit as set forth inOrdinance Section

30.01.087 as an alternative to issuing a Notice of Adverse Action or a Notice of Denial.

1. To request an additional security deposit, a Landlord must provide a written “Notice of Conditional Approval” to the Applicant that contains the same information as required in a Notice of Adverse Action or a Notice of Denial (depending on the screening process used) and additionally contains thespecific amount being requested as well as the ability for an Applicant to choose a payment plan as set forth in Section30.01.087.
2. If a Landlord requests an Additional Deposit as a condition of offsetting a low-income ratio, the Landlord does not need to issue a Notice of Conditional Approval but must follow the code as set forth in Section30.01.087.
3. ScreeningFees.
   1. A Landlord must return a screening fee, or communicate approval or denial of residential tenancy, to an Applicant within two weeks of the final determination of theapplication.
   2. If using a professional screening company exclusively, the screening feecharged by the Landlord cannot be more than what is charged by the screeningcompany.
   3. If using a professional screening company in addition to screening work by the Landlord, fees cannot exceed 25% above what is charged by the screening company.
   4. If a Landlord screens independently without the use of a professional screening company, fees cannot exceed 10% above what is charged by the average professional screening company in the Portland-Metroarea.
4. ModificationRequests.
   1. An Applicant that experiences disabilities cannot be denied housing based ona denial of reasonable modificationalone.
   2. If an Applicant’s modification request is denied, the Applicant must be allowed 24 hours to request an alternative modification that meets theirneeds.
   3. If the second modification request is denied, the Applicant must be allowed another 24 hours to request an alternative modification that meets theirneeds.
   4. If no reasonable modification can be made in the Dwelling Unit the Applicant applied for, then the Applicant may still accept the Dwelling Unit if they meet the eligibilitycriteria.

1. Exemptions.
   1. Any Dwelling Unit that is subject to a partnership or referral agreement betweena Landlord and a non-profit service provider or government agency working to place low income or vulnerable tenants into housing is exempted from this Section.
   2. Any Dwelling Unit not rented or advertised to the general public,(including online platforms with or without a fee), are exempted from thisSection.
   3. Any Dwelling Unit otherwise complying with state or federal loan or funding requirements is exempted from the parts of this Section in conflict with theloan or fundingrequirements.
   4. Any Dwelling Unit shared with a Landlord or sub-leaser as their primary residence is exempted from thisSection.
2.   Damages. Any Applicant claiming to be aggrieved by a Landlord’s noncompliance with the foregoing has a cause of action in any court of competent jurisdiction for Damages and any such other remedies as may beappropriate.
3.  

SECURITY DEPOSITS

Discussion: A new set of draft rules on security deposits (Ordinance No. 30.10.087) was marked as “Exhibit A” to the February 20, 2019 draft of the screening ordinance (Ordinance No. 30.10.088). It is also believed that the administrative rules for this Ordinance have not been written yet, as they have not been posted on the City’s website. Below is a summary of these rules, that are offered with the proviso that the final draft may be different. 

1. Additional Protections. The following additional protections regarding security deposits apply to Tenants that have a Rental Agreement or a Dwelling Unit covered by theAct.
2. Last Month’s Rent. If a Landlord requires, as a condition of tenancy, last month’s Rent, a Landlord may not collect more than an amount equal to one-half of a month’s Rent as a security deposit. 
   1. If a Landlord does not require last month’s Rent, a Landlord may not collect more than an amount equal to one month’s Rent as a security deposit. 
   2. If an Applicant receives a Conditional Approval asdefinedinSection30.01.088,aLandlordmayrequestanamountequaltoone-halfofamonth’s Rent as a security deposit in addition to the other amounts previously listed in this subsection. 
   3. A Landlord must allow a Tenant to pay such additional security deposit in installments over a 2-6-month period and in amounts as requested by theTenant.
3. Security Deposit.To the extent that a Landlord withholds an amount from a security deposit to repair damages to the premises beyond ordinary wear and tear, “ordinary wear and tear” shall mean deterioration that occurs without deliberate or negligent destruction, damage, or removal of any part of the premises, equipment, furnishings or appliances by the Tenant, a member of the Tenant household or other persons on the premises with the Tenant’s consent.

4.    Carpet Damage. To charge for carpets, a Landlord must take into consideration the cost only of the contiguous area where the carpet is required to be replaced due to damage and may not take into consideration the original expense of the carpet for the entire Dwelling Unit. 

a.   A Landlord may not chargeforinteriorpaintingofaresidence,exceptwhatisnecessarytorepairspecificdamagemade to a wall beyond ordinary wear and tear and to repaint walls that were painted by the Tenant without permission. 

b.   Basic cleaning is presumed to be ordinary wear andtear and nothing in this Subsection shall be construed to mean that a Landlord may charge for cleaning costs that do not address damage or filth beyond ordinary wear andtear.

5.    Landlord’s Movable Property.For purposes of determining the amount reasonably necessary to repair damaged, movable property in the Dwelling Unit, such movable property is presumed to depreciate at a rate of 3.6% per annum over a period of 27 years. 

a.   A Landlord may provide documentation demonstrating why a different calculation is justified for determining a reasonable amount necessary to repair an item of damaged, movable property. 

b.   Before executing the Rental Agreement, a Landlord must provide the Tenant with a list of movable property in the Dwelling Unit along with the depreciated value of each item at the time of move-in (the “Commencement Date”).

1. Condition Report.Within one week of the Commencement Date, a Tenant may complete and submit to the Landlord, a condition report (on a form provided by the Landlord) noting any and all damage in the Dwelling Unit (the “Condition Report”). 
   1. If the Tenant submits a Condition Report to the Landlord within one week of the Commencement Date, such Condition Report shall be the proof of the condition of the Dwelling Unit on the Commencement Date in order to assess damage beyond reasonable wear and tear at move out (the “Termination Date”). 
   2. If, after the first week, the Tenant has not completed a Condition Report, a Landlord must complete a Condition Report and provide a copy to the Tenant. 
   3. Any damages noted in the Condition Report completed by the Landlord upon move-in must also be documented in photographs and provided to the Tenant. 
   4. IfanydamagenotedintheConditionReportissubsequentlyrepaired,theLandlordmustrevisethe Condition Report to reflect such repair, have it initialed by the Tenant, and provide a copy of the revisedConditionReport.
   5. IfeitherpartydisagreeswithanydamagenotedontheConditionReport, they must write the nature of their disagreement on the Condition Report, initial, and provide a copy to the otherparty.

7.    Final Inspection.Within one week of the Termination Date of which the Landlord had notice, the Landlord shallconductawalk-throughoftheDwellingUnittodocumentanydamagebeyondordinarywear andtearnotnotedontheConditionReport(the“FinalInspection”).

a.   ATenant,and/ortheTenant’s representative, has the right to be present for the Final Inspection, but may choose not to participate. The Landlord must give notice of the date and time of the Final Inspection at least 24hours in advance to theTenant.

8.    Damage Withheld From Security Deposit.Any damage for which a Landlord intends to withhold a portion of a Tenant’s security deposit must be documented in writing and include proof of depreciated value for movable property in the Dwelling Unit including, but not limited to, original receipts or demonstration of a similar make and model, and visual damage must be documented in photographs and provided to the Tenant at the same time as the written accounting required under ORS 90.300 (12)(Security Deposits). 

a.   To the extent that a Landlord seeks to charge labor costs greater than $200 to a Tenant, the Landlord must provide documentation demonstrating that the labor costs are reasonable and consistent with the typical hourly rates in the metropolitan region. 

b.   A Landlord may not charge for damage noted on the ConditionReport.

1. Deposit of Security Deposit.Within 2 weeks of receipt of a security deposit, a Landlord must deposit the money in a separate checking, savings, money market, or client trust account and provide the bank institution name and account number in writing to the Tenant. If the account bears interest, the Landlord is required to pay such interest in full, minus an optional 5% deduction for administrative costs, to the Tenant unless it is used to cover any claims for damage. 
   1. For interest bearing accounts, the Landlord must provide a receipt of the account and any interest earned at the Tenant’s request, no more than once per year. 
   2. A Landlord may pool multiple security deposits in a single account so long as the account is separate from the Landlord’s personal funds, is not accessed except to deposit and withdraw Tenant deposits, and Landlord can provide an individual accounting of each Tenant deposit and the interest earned thereon. 
   3. A landlord shall have six (6) months from the effective date of this Subsection to comply with the above requirements.
2. Notice of Rights.Contemporaneously with the delivery of the written accounting required by ORS 90.300 (12)(Security Deposits), the Landlord must also deliver to the Tenant a written notice of rights regarding security deposits (“Notice of Rights”). 
   1. Such Notice of Rights must specify all of Tenant’s right to damages under this Section. 
   2. The requirement in this Section may be met by delivering a copyof this Section to the Tenant along with contact information for the nearest Legal Aid Services of Oregon office or the Oregon StateBar.
3. Written Account of Tenant Rent Payment History.Within 5 business days of receiving or giving a notice of any kind that terminates a tenancy, a Landlord must provide a written accounting of the Tenant’s Rent payment historythat covers the tenancy for the term or the prior two years, whichever islonger.

12. Rental History Form.Within 5 business days of receiving or giving a notice of any kind that terminates a tenancy, a Landlord must provide a completed Rental History Form as provided by Portland Housing Bureau.

1. Violation of Ordinance.A Landlord that fails to comply with any of the requirements set forth in this Ordinance No. 30.01.87 shall be liable to the Tenant for the security deposit, a penalty in the amount equal to two times the security deposit, as well as attorney fees and costs (collectively, “Damages”).
   1. Any Tenant claiming to be aggrieved by a Landlord’s noncompliance with the foregoing has a cause of action in any court of competent jurisdiction for Damages and any such other remedies as may beappropriate.

_________________________________________________________

[1]ORS 90.100(12) provides that a “Dwelling unit” regarding a person who rents a space for a manufactured dwelling or recreational vehicle or regarding a person who rents moorage space for a floating home as defined in ORS 830.700, but does not rent the home, means the space rented and not the manufactured dwelling, recreational vehicle or floating home itself.

[2]  "Associated Housing Costs." include, but are not limited to, fees or utility or service charges, means the compensation or fees paid or charged, usually periodically, for the use of any property, land, buildings, or equipment. For purposes of Portland’s rent increase ordinances, housing costs include the basic rent charge and any periodic or monthly fees for other services paid to the Landlord by the Tenant, but do not include utility charges that are based on usage and that the Tenant has agreed in the Rental Agreement to pay, unless the obligation to pay those charges is itself a change in the terms of the Rental Agreement. [See, https://www.portlandoregon.gov/citycode/28481#cid_708924]

[3]Note: Charges to a landlord for exceeding the Oregonrent cap laws, or for other violations under the recently enacted SB 608, are notidentified as “relocation assistance”. That law provides at Section 1: “(9)(a) If a landlord terminates a tenancy in violation of subsection (3)(c)(B), (4)(c), (5),(6) or(7)ofthissection: (A)Thelandlordshallbeliabletothetenantinanamountequaltothreemonths’rent inadditiontoactualdamagessustainedbythetenantasaresultofthetenancytermination; and (B)Thetenanthasadefensetoanactionforpossessionbythelandlord. (b)Atenantisentitledtorecoveryunderparagraph(a)ofthissubsectionifthetenant commencesanactionassertingtheclaimwithinoneyearafterthetenantkneworshould haveknownthatthelandlordterminatedthetenancyinviolationofthissection.”

[4]Under Portland City Code 33.910 a “Dwelling Unit” is abuilding, or a portion of a building, that has independent living facilities including provisions for sleeping, cooking, and sanitation, and that is designed for residential occupancy by a group of people. Kitchen facilities for cooking are described in Section 29.30.160 of Title 29, Property and Maintenance Regulations. Buildings with more than one set of cooking facilities are considered to contain multiple dwelling units unless the additional cooking facilities are clearly accessory, such as an outdoorgrill. Under ORS 90.100(12), which is used elsewhere in the Portland City Code, a “Dwelling Unit” “…means the space rented and not the manufactured dwelling, recreational vehicle or floating home itself. 

[5]Per the City’s Administrative Rules, the term “Immediate Family” means “…parent, foster parent, step parent, parent in law, sibling, foster sibling, step sibling, sibling in law, grandparent, grandparent in law, child, step child, foster child, grandchild,aunt, uncle, niece, or nephew.An Immediate Family member cannot be an Ownerof the Dwelling Unit, their spouse, or their domestic partner. The Immediate Familymember must have reached the age of majority (18)or be a legally recognized emancipated minor.”