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Answer:  The short answer is Yes. The utilities section of the manufactured housing side of Oregon’s landlord-tenant law is ORS 90.560(4) provides:

• “Public service charge” has the meaning given the term in ORS 90.315 (Utility or service payments).
• ORS 90.315(1) defines:
  •  “Public services” payments to mean ‘municipal services and the provision of public resources related to the dwelling unit, including street maintenance, transportation improvements, public transit, public safety and parks and open space. (Emphasis added); and
  • “Public service charge” means a charge imposed on a landlord by a utility or service provider, by a utility or service provider on behalf of a local government or directly by a local government. (Note: public service charge” does not include real property taxes, income taxes, business license fees or dwelling inspection fees.)
• ORS 90.570 provides: “A landlord, upon 60 days’ written notice to a tenant, may unilaterally amend a rental agreement[1]to require a tenant to pay to the landlord, as part of the utility or service charge, a pro rata proportion of any new or increased public service charge billed to the landlord by a utility or service provider or a local government for a public service provided directly or indirectly to the tenant’s dwelling unit or to the facility common area.” (Emphasis added.)
• ORS 90.568 addresses “pro-rata billing” as follows:
  • “If allowed by a written rental agreement, a landlord using pro rata billing may require a tenant to pay to the landlord a utility or service charge that was billed by a utility or service provider to the landlord for a utility or service provided directly to the tenant’s space or to a common area available to the tenant as part of the tenancy. A landlord may include in pro rata billing a public service charge under ORS 90.570 (Public service charge pro rata apportionment).” (Emphasis added.)
  • A pro rata billing charge for tenants’ spaces must be allocated among them by a method that reasonably apportions the cost among the affected tenants and that is described in the rental agreement.
  • Methods that reasonably apportion the cost among the tenants include, but are not limited to, methods that divide the cost based on:
    • • • • The number of occupied spaces in the facility;
          • The number of tenants or occupants in the dwelling or home compared with the number of tenants or occupants in the facility, if there is a correlation with consumption of the utility or service; or
          • The square footage in each dwelling, home or space compared with the total square footage of occupied dwellings or homes in the facility or the square footage of the facility, if there is a correlation with consumption of the utility or service.
• A utility or service charge to be assessed to a tenant for a common area must be described in the written rental agreement separately and distinctly from the utility or service charge for the tenant’s space. (Emphasis added.)

Conclusion and Caveats. So, yes, to the above question: Prepare a 60-day written Notice of Unilateral Amendment explaining the public service charge and the pro-rata allocation approach. Keep records of these utility charges for tenants to inspect if they want, and when they increase, make sure tenants are notified as soon as possible.  Just like increases in utility rates, they may be passed along – they don’t require additional advance notice.

Utility pass-throughs can be very complicated for a variety of reasons. First and foremost, the legislation is created by committees of stakeholders including industry representatives for landlords (park and non-park owners), tenants, utility companies, lenders, and other interested parties. The results can be confusing, especially so because Oregon’s landlord-tenant law contains a “soft” bifurcation between non-MHPs and MHPs. I say “soft” because the MHP side, ORS 90.505+ occasionally depends upon and includes provisions from the non-MHP side, i.e., ORS 90.100 – ORS 90.493. These observations are not to diminished the legislative drafters’ skills – they must work with what they have.

Familiarity with MHP utility laws i.e., ORS 90.560 to ORS 90.584 (including various stealth statutes that precede ORS 90.560!) requires time, patience, and care. The above summary responds only to the limited question presented. It does not address the MHP landlord’s responsibility to make sure that all park documents address the current utility rules applicable to their park and are sufficiently explained to incoming tenants. If in doubt, legal counsel should always be consulted. ~ Phil

[1] Note: I recommend that each time a landlord seeks to “unilaterally amend” the rental agreement under Oregon law, a documents entitled “Unilateral Amendment” (or similar caption) be delivered to all affected tenants pursuant to ORS 90.155with the same diligence as if they were issuing a rent increase notice. This is really the only way the 60-day notice requirement can be established.  

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans housing discrimination against individuals with disabilities, including the refusal to make reasonable accommodations in rules, policies, practices, or services when they’re necessary to provide individuals with disabilities an equal opportunity to use and enjoy their home at the community.

The reasonable accommodation provisions come into play whenever an individual with a disability wants to use an assistance animal in communities that either prohibit or impose restrictions or conditions on pets at the community. Like all reasonable accommodation requests, the determination of whether an individual has a disability-related need for an assistance animal involves an individualized assessment, according to HUD.

Federal fair housing law broadly defines “disability” to mean physical or mental impairments that substantially limit one or more major life activities. That covers a wide variety of physical and psychological impairments—many of which aren’t obvious or apparent—as long as the impairment is serious enough to substantially limit a major life activity, such as seeing, hearing, walking, or caring for oneself.

Assistance animals are not pets under fair housing law, according to HUD. They’re animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability. You can’t charge an extra fee or pet deposit as a condition of granting a reasonable accommodation for an assistance animal.

Don’t get confused by the different rules under the Americans with Disabilities Act (ADA), which governs the types of animals used by individuals with disabilities in places that are open to the public, such as restaurants, hotels, and other venues. With one limited exception, the ADA permits only individually trained service dogs—and excludes emotional support animals.

But the FHA, which governs multifamily housing communities, is much broader than that. Fair housing law allows not only service dogs, but also any type of animal that provides assistance or emotional support to an individual with a disability. Breed, size, or weight limitations may not be applied to an assistance animal, according to HUD. Assistance animals don’t have to be individually trained or certified—and they all have the same legal standing—regardless of what type of assistance they provide to an individual with a disability.

8 RULES FOR HANDLING REQUESTS

FOR ASSISTANCE ANIMALS

Rule #1: Adopt Pet Policy Subject to Exceptions for Assistance Animals

Fair housing law doesn’t prevent you from having a pet policy—as long as you don’t use it to keep out assistance animals. Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as extra fees, pet deposits, or additional rent charges. Whatever your policy on pets, it’s unlawful to deny an exception for an assistance animal needed by an individual with a disability to fully use and enjoy the community.

Example: In July 2019, HUD charged a Maine community and one of its agents with discrimination for denying a veteran with disabilities the right to keep his assistance animal. In his HUD complaint, the veteran alleged that he called the community in response to an ad on Craigslist. When he told the agent that he had a disability-related need to live with his assistance dog, the agent allegedly responded, “absolutely not,” and she regretted allowing a prior tenant to live with his assistance dog because other tenants then wanted to get pet dogs.

“No person with a disability should be denied the accommodation they need, especially individuals who served in the Armed Forces to defend our freedom,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work to ensure that housing providers meet their obligation to comply with this nation’s fair housing laws.”

Rule #2: Don’t Make Snap Decisions About Requests for Assistance Animals

Anytime someone asks for an exception to your pet policy to keep an assistance animal, you should treat it as you would any other request for a reasonable accommodation. The reasonable accommodation rules kick in anytime anyone says he needs or wants something—including an assistance animal—because of a disability. The law doesn’t require that a request be made at a particular time or in a particular manner. The person doesn’t have to mention fair housing law or use the words “reasonable accommodation.”

When you receive a request for an assistance animal, HUD says there are two relevant questions:

1. Does the person seeking to use and live with the animal have a disability—that is, a physical or mental impairment that substantially limits one or more major life activities?
2. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks with services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

If the answer to both questions is “no,” then HUD says that fair housing law doesn’t require you to make an exception to your pet policy and the reasonable accommodation request may be denied.

If the answer to both questions is “yes,” however, you’re required to make an exception to your pet policies to permit an individual with a disability to live with and use an assistance animal at the community, unless doing so would impose an undue financial or administrative burden or would fundamentally alter the nature of the community’s services.

The request may also be denied if the animal is a direct threat to your property or the health and safety of others. But HUD warns that you can’t make that decision based on speculation about the animal’s size or breed—you have to look into the specifics of the particular animal involved. It can get complicated, so don’t make snap decisions about whether to bar an animal on that basis without reviewing all the facts.

Rule #3: Request Documentation When Needed to Evaluate Request

Don’t deny a request just because you’re uncertain about whether the person seeking the accommodation has a disability or a disability-related need for an assistance animal. Though fair housing law generally forbids housing providers from making disability-related inquiries, there’s an exception for reasonable accommodation requests when either the disability—or the disability-related need for the requested accommodation—isn’t obvious or apparent.

Just remember: You can’t ask questions about an applicant’s disability or disability-related need for an assistance animal if both are known or readily apparent. The classic example is a request by a blind or visually impaired applicant to keep a guide dog. Since both the disability and the need for the animal are readily apparent, you can’t ask for documentation about the applicant’s disability or disability-related need for the dog.

You may request information from a resident with a known or obvious disability—but only if his need for the assistance animal isn’t readily apparent. As an example, federal guidelines point to a request by an applicant who uses a wheelchair to keep a dog as an assistance animal. The applicant’s disability is readily apparent, but the need for the assistance animal isn’t obvious, so you can ask the applicant to provide information about the disability-related need for the dog—as long as you don’t go overboard by asking for too much information.

Rule #4: Ask for Verification If Resident Doesn’t Have Apparent Disability

Be careful about how you handle requests for assistance animals from applicants or residents who don’t have an obvious or apparent disability. Under fair housing law, all individuals with disabilities are equally protected—whether they’re physical or mental, obvious or not–so don’t let outward appearances affect how you treat them.

If the resident’s disability isn’t readily observable, you may ask for reliable disability-related information that’s necessary to verify that the resident has a disability that qualifies under the FHA—that is, a physical or mental impairment that substantially limits one or more major life activities—and has a disability-related need for the animal. You can’t ask the resident for information about what his disability is or what the animal does to assist him—only for confirmation that there is a disability and that the animal is needed because of that disability.

In general, verification may come from a doctor or a medical professional, peer support group, or reliable third party in a position to know about the individual’s disability—even the resident himself, under certain circumstances. But you can’t ask applicants or residents for access to medical records or medical providers—or for detailed or extensive documentation about their physical or mental impairments.

For example, HUD says that communities may ask applicants who want a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support, according to HUD.

Editor's Note: For model forms you can use to verify an applicant or resident's need for an assistance animal, see “Use Forms to Verify Resident’s Need for  Assistance Animal,” which appeared in our June 2018 issue.

Rule #5: Consider Requests for Emotional Support Animals

Treat requests for emotional support animals the same as any other request for a service dog or any other type of assistance animal. Fair housing law allows people with disabilities to have assistance animals that perform work or tasks, or that provide disability-related emotional support.

Example: In April 2019, the Justice Department sued the owner and property manager of a seven-unit rental property in New York City for refusing a reasonable accommodation to allow a resident with psychiatric disabilities to live with an emotional support German Shepherd in his unit. According to the complaint, the resident was a retired law enforcement officer and September 11th first responder who required an emotional support dog to assist him with his disabilities. The complaint alleged that the community sought to evict him for living with an emotional support dog and, after discontinuing the eviction action in which each side was supposed to pay its own attorney’s fees, the community allegedly retaliated and harassed him by billing him for its attorney’s fees related to its unsuccessful eviction attempt [U.S. v. Higgins, April 2019].

Example: In March 2019, the owner and property manager of a 232-unit housing cooperative in New York City agreed to pay $70,000 to settle allegations that they violated fair housing law by refusing to allow a resident with disabilities to keep an emotional support beagle in his unit. The Justice Department filed the complaint, alleging that the resident had disabilities and requested a reasonable accommodation to keep an assistance dog in his unit. According to the complaint, the community effectively denied the request by issuing a notice of default stating that he violated his lease by harboring a dog in his unit. A few months later, the complaint alleged that the community notified him that his tenancy would be terminated because he kept a dog in his unit [U.S. v. 118 East 60th Owners, Inc., March 2019].

Rule #6: Don’t Put Too Much—or Too Little—Stock in Online Certifications

Knowing the rules on disability verification is essential to avoiding the common mistakes that lead to complaints involving requests for assistance animals. It’s particularly important now that so many applicants or residents can go online and find a quick “certification” process to say their dog is a certified assistance animal.

Example: In November 2018, a court dismissed claims against a Florida homeowners association for denying a resident’s request for an assistance animal. In his complaint, the resident alleged that he was disabled as a result of a 2009 auto accident and bought a Rottweiler puppy in 2017 to serve as a service dog allegedly on the advice of his doctor. When he received a notice of violation stating that Rottweilers weren’t permitted, the resident said he informed the community that the puppy was a service animal. Instead of completing a medical release and form to verify his accommodation request, he allegedly produced service dog identification cards purchased online, his handicap parking placard, and copies of his disability checks. Allegedly, the community denied his reasonable accommodation request because he didn’t provide documentation of his disability or need for a service dog. 

He sued, but the court dismissed the case because the resident failed to prove that he had a disability under fair housing law. The only information about his disability was in his complaint. Although he alleged permanent mobility impairments from his 2009 car accident, he failed to present evidence of his injuries or limitations. And the community presented photos of him riding a scooter, and standing and walking unaided, which contradicted his allegations of disability [Fitzsimmons v. Sand & Sea Homeowners Association, November 2018].

When an applicant provides you with an online certification that he needs an assistance animal, it’s necessary to determine whether it meets the requirements that it’s reliable and from someone familiar with the applicant’s disability. Don’t automatically assume that an online certification wasn’t issued by any recognized group, or a medical or mental health provider, and deny the request.

You still have the obligation to consider, respond, and act on the request—even when you suspect that the online verification doesn’t provide you with all the information you need to act on the accommodation request. Unless the applicant has an obvious disability, you may request confirmation from her treating mental or medical health professional to verify that the applicant is under the provider’s care and treatment and that the provider has diagnosed a medical or mental condition that renders the patient disabled. You may also request confirmation from the treating doctor or mental health provider that the animal is prescribed to assist with the disability.

If the applicant or resident is unwilling to cooperate or obtain the proper medical or mental health provider’s assistance in verifying the information, then you may have grounds for denying the request. But this is a difficult area, so it’s important to get legal advice before taking any adverse action.

Rule #7: Consider Requests for Dogs Otherwise Excluded Under Pet Policies

Carefully consider requests for assistance animals—even if it’s for an animal that’s generally prohibited under your pet policies. It’s common for communities to allow only certain types of pets or to exclude animals based on their size or breed. But remember—these limits don’t apply to assistance animals. HUD says that breed, size, and weight restrictions may not be applied to an assistance animal.

Example: In February 2019, the owner and manager of an apartment building in Manhattan agreed to pay $100,000 to settle allegations of disability discrimination for refusing to rent a unit to an applicant with a psychiatric disability and her fiance because she had a large assistance animal.

According to the complaint filed by the Justice Department, the couple expressed interest in renting a unit, but they had a “service animal” that was “probably over the permitted weight limit” for the building. After they submitted forms requesting a reasonable accommodation, the manager allegedly notified them that the community would permit them to have a dog up to 50 pounds as a reasonable accommodation but their current dog—a 120-pound Cane Corso—was too large, so it would be best if they didn’t pursue their application for an unit in the building [U.S. v. Glenwood Management, February 2019].

It can get complicated when it comes to breed restrictions. Many communities have policies restricting certain dog breeds, most notably pit bulls, but HUD says that breed restrictions don’t apply to assistance animals. To comply with fair housing law, you must assess whether the particular animal in question poses a direct threat; otherwise, you may be accused of denying a reasonable accommodation by excluding an assistance animal based on its breed.

It’s another matter if your community is subject to a local ordinance banning pit bulls or other “dangerous breeds.” If allowing the dog would violate local law, then you may have grounds to deny the request, but this is another gray area where it’s a good idea to get legal advice before taking action on the request.

Example: In April 2019, the Nebraska Supreme Court ruled against a resident who claimed that the city violated fair housing law by denying his reasonable accommodation request to keep his pit bull as an emotional support animal despite its ordinance banning pit bulls and other “dangerous dogs.”

The lawsuit was filed by a resident who was partially paralyzed and had a pit bull as an emotional support animal. That same year, the city adopted an ordinance banning pit bulls and other dangerous dogs but grandfathered in dogs registered with the city before the law took effect. The resident failed to register the dog on time, so an enforcement officer said he’d have to get rid of the dog.

After obtaining documentation from his doctor, the resident sued the city for violating fair housing law. Rejecting the city’s argument that it was exempt from the FHA, the court issued an order that the ordinance was invalid as applied to the resident’s retention of the dog in his home.

On appeal, the state’s highest court reversed in part, ruling that the resident failed to prove that the requested accommodation was necessary. Assuming that he needed an emotional support dog, he failed to prove that other dogs not covered by the ordinance couldn’t provide comparable therapeutic benefit with regard to his disability. Fair housing law didn’t give him a right to his preferred option [Wilkinson v. City of Arapahoe, April 2019].

Rule #8: Don’t Ban Assistance Animals from Common Areas

Don’t impose unreasonable limits that prevent residents with disabilities from bringing their assistance animals into common areas. HUD says that residents with disabilities may use assistance animals in all areas of the premises where persons are normally allowed to go unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of your services.

Example: In February 2019, a court ruled that a Nevada homeowners association had to pay a couple $635,000 for refusing to grant the wife’s disability-related reasonable accommodation request to bring her assistance animal, a Chihuahua, into the clubhouse.

The court ruled that the FHA applied because access to the clubhouse was necessary for the couple’s enjoyment of their home. The dog qualified under the ADA as an assistance animal because it assisted the wife with acute pain attacks and with retrieving her walker. The dog was not disruptive, threatening, or harmful to the other residents in the community or in the clubhouse, so the accommodation to allow the dog to accompany the wife into the clubhouse was clearly a reasonable accommodation of the wife’s disability.

The court assessed punitive damages against some of the parties involved in denying the wife’s accommodation requests. Among other things, the court said they:

• Continued, in a harassing and malicious manner, to request documentation about the wife’s need for the dog’s assistance even after sufficient documentation was provided regarding her disability and the ways in which the dog assisted her;
• Actively and wantonly prevented the couple from using the clubhouse once documentation was provided;
• Sent or directed to be sent communications on behalf of the board portraying the couple as litigious and untruthful and knew that these communications would contribute to a hostile, threatening, and intimidating living environment; and
• Failed to discourage other residents from harassing and threatening the couple at open meetings and through anonymous letters.

The court further found that they acted with personal animus toward the couple, which fueled the antagonism among the community [Sanzaro v. Ardiente Homeowners Association, LLC, February 2019].

Nevertheless, you don’t have to tolerate bad behavior by individuals with disabilities—or their assistance animals—when they’re in common areas. You may expect them to have their assistance animals under their control, for example, by requiring them to be leashed unless doing so would interfere with the animal’s ability to perform disability-related tasks. You may establish rules to require residents with assistance animals to pick up and dispose of the animal’s waste and to hold them accountable if the animal becomes disruptive or acts aggressively toward other residents.

• Fair Housing Act: 42 USC §3601 et seq.

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.”

Answer: I assume when he was first accepted as a resident he did not have a criminal record for any sex offenses. The statute that comes into play is ORS 90.630 (Termination by landlord; causes; notice; cure; repeated nonpayment of rent.) It provides, in part: " ... the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days' notice in writing before the date designated in the notice for termination if the tenant: (c) Is determined to be a predatory sex offender under ORS 181.585 to 181.587;" This statute has only been in existence for a few years. As I read it, assuming that at the commencement of the tenancy, a landlord ran a criminal background check on a prospective resident and nothing showed him to be a sex offender - and they he later committed a sexual offence - you can evict them at as soon as you find out. In this case, it would seem that you can exclude him on that basis alone. Had this law been on the books when he committed the crime, and he didn'tgo to jail, you could have evicted him at the time. Now that it's on the books, I think you have the same right to keep him out, i.e. to protect the residents' visiting grandchildren. The only issue is whether he is '_a predatory sex offender under ORS 181.585 to 181.587." Here is what those statutes say, and I imagine you will have to verify whether he falls into one of the categories. 181.585 "Predatory sex offender" defined; determination. (1) For purposes of ORS 181.585 to 181.587, a person is a predatory sex offender if the person exhibits characteristics showing a tendency to victimize or injure others and has been convicted of a sex crime listed in ORS 181.594 (5)(a) to (d), has been convicted of attempting to commit one of those crimes or has been found guilty except for insanity of one of those crimes. (2) In determining whether a person is a predatory sex offender, an agency shall use a sex offender risk assessment scale approved by the Department of Corrections or a community corrections agency. [Formerly 181.507; 1997 c.538 _10; 2005 c.567 _16; 2009 c.713 _14] 81.586 Notice to appropriate persons of supervised predatory sex offender; content; additional duties of supervising agency. (1)(a) If the State Board of Parole and Post-Prison Supervision for a person on parole or post-prison supervision or the Department of Corrections or a community corrections agency for a person on probation makes a determination that the person under its supervision is a predatory sex offender, the agency supervising the person shall notify: (A) Anyone whom the agency determines is appropriate that the person is a predatory sex offender; and (B) A long term care facility, as defined in ORS 442.015, or a residential care facility, as defined in ORS 443.400, that the person is a predatory sex offender if the agency knows that the person is seeking admission to the facility. (b) When a predatory sex offender has been subsequently convicted of another crime and is on supervision for that crime, the agency supervising the person, regardless of the nature of the crime for which the person is being supervised: (A) May notify anyone whom the agency determines is appropriate that the person is a predatory sex offender; and (B) Shall notify a long term care facility, as defined in ORS 442.015, or a residential care facility, as defined in ORS 443.400, that the person is a predatory sex offender if the agency knows that the person is seeking admission to the facility. (2) In making a determination under subsection (1) of this section, the agency shall consider notifying: (a) The person's family; (b) The person's sponsor; (c) Residential neighbors and churches, community parks, schools, convenience stores, businesses and other places that children or other potential victims may frequent; and (d) Any prior victim of the offender. (3) When an agency determines that notification is necessary, the agency may use any method of communication that the agency determines is appropriate. The notification: (a) May include, but is not limited to, distribution of the following information: (A) The person's name and address; (B) A physical description of the person including, but not limited to, the person's age, height, weight and eye and hair color; (C) The type of vehicle that the person is known to drive; (D) Any conditions or restrictions upon the person's probation, parole, post-prison supervision or conditional release; (E) A description of the person's primary and secondary targets; (F) A description of the person's method of offense; (G) A current photograph of the person; and (H) The name or telephone number of the person's parole and probation officer. (b) Shall include, if the notification is required under subsection (1)(a)(B) or (b)(B) of this section, the information described in paragraph (a)(D), (F) and (H) of this subsection. (4) Not later than 10 days after making its determination that a person is a predatory sex offender, the agency supervising the person shall: (a) Notify the Department of State Police of the person's status as a predatory sex offender; (b) Enter into the Law Enforcement Data System the fact that the person is a predatory sex offender; and (c) Send to the Department of State Police, by electronic or other means, all of the information listed in subsection (3) of this section that is available. (5) When the Department of State Police receives information regarding a person under subsection (4) of this section, the Department of State Police, upon request, may make the information available to the public. (6) Upon termination of its supervision of a person determined to be a predatory sex offender, the agency supervising the person shall: (a) Notify the Department of State Police: (A) Of the person's status as a predatory sex offender; (B) Whether the agency made a notification regarding the person under this section; and (C) Of the person's level of supervision immediately prior to termination of supervision; and (b) Send to the Department of State Police, by electronic or other means, the documents relied upon in determining that the person is a predatory sex offender and in establishing the person's level of supervision. (7) The agency supervising a person determined to be a predatory sex offender shall verify the residence address of the person every 90 days. [Formerly 181.508; 1997 c.538 _11; 1999 c.626 _10; 1999 c.843 _2; amendments by 1999 c.626 _33 and 1999 c.843 _3 repealed by 2001 c.884 _1; 2001 c.884 _11; 2005 c.671 _11] 181.587 Availability of information on supervised predatory sex offender. (1) Unless the agency determines that release of the information would substantially interfere with the treatment or rehabilitation of the supervised person, an agency that supervises a predatory sex offender shall make any information regarding the person that the agency determines is appropriate, including, but not limited to, the information listed in ORS 181.586 (3), available to any other person upon request. (2) Notwithstanding subsection (1) of this section, the agency shall make the information listed in ORS 181.586 (3), or any other information regarding the supervised person that the agency determines is appropriate, available to any other person upon request if the person under supervision: (a) Is a predatory sex offender; and (b) Is neglecting to take treatment or participate in rehabilitation. [Formerly 181.509] MHCO Note: The law regarding the eviction of sexual predators was championed by MHCO several years ago. Through MHCO's efforts in the Landlord-Tenant Coalition, MHCO was able to change Oregon Statutes to give Landlords in manufactured home communities the right to evict an existing resident in a community who is discovered to be a predatory sex offender.

That is the question on the minds of most MHCO members we speak to. As you have likely noticed, the costs of water, sewer, and other utilities has increased exponentially in the last few years for both commercial and residential properties alike. The addition of unrelated or undefined fees, such as street maintenance, base charges, and additional services, has become commonplace. Combine that with careless usage of water by tenants and you have a perfect storm for losing revenue. Since we cannot directly control these increasing costs or the careless usage, it is nearly impossible to try and keep up by using rent increases alone.

Our recommendation is to focus on what you can control: who is directly paying for the utility expense. According to the Alliance for Water Efficiency (http://www.allianceforwaterefficiency.org), the average submetered customer uses up to 20% less than a customer on a master metered system. In our professional experience, we have seen decreases of up to 40%. It is really no surprise that when you transfer the responsibility to the tenant, they instantly become more aware of the leaks and conservation behaviors that they had been ignoring previously. It is just human nature that if something doesn'tcost you anything, you are less likely to be conscientious.

In order to place this responsibility on the tenant and get control of your utility expenses, you need to convert your park to the "Submeter Billing Method" outlined in the Oregon statutes. This can be a daunting task to take on alone, so it is important that you use someone who is an expert. We have spent the last few years immersed in research and have designed Jet Utilities' Submeter Conversion Program around the laws specific to Oregon. We have consulted the best minds in the business, including many Coalition board members, as well as independent council. We can confidently call ourselves experts in not only regulations and project management, but also in the actual installation of the system. Jet has its own licensed journeyman plumbers who are dedicated to the installation of submeters at mobile home parks. We have the knowledge and experience to handle a park of any size, with any type of plumbing material, anywhere in Oregon, Washington, or California.

We are confident that submetering is the right thing to do for your manufactured home community. The largest obstacle that many owners face after realizing their need to submeter is finding a way to fund the project. Until recently, your choices have been very limited: use your own capital or try and secure financing on your own. Neither of those is very attractive or very easy to do given the current economic state. Jet Utilities' Submeter Conversion Program offers owners and managers a turn key solution including the funding for the equipment and installation. There are no loans to qualify for, no up-front capital, and no cost to you. How can we do this, you ask? It is simple. We already have the funding for these projects. We simply install an Automatic Meter Reading (AMR) System and utility grade water meters at each space, and then bill you a flat monthly fee that Oregon law allows you to pass directly through to the tenants.

There are some very important laws and regulations that go into the preparation of this as well as the requirement for a Unilateral Amendment to the Rental Agreement which is now available to MHCO members in the "Forms" section of the MHCO website. (MHCO Form 14 - Unilateral Amendment to Rental Agreement for Sub-Metering). This is the first step in preparing for Submeter Conversion.

For more information and a quote for your park, please visit our website www.jetutilities.com or call 1-844-JET-UTIL (844-538-8845) and ask for Erik.

Gen Y's are generally defined as the population born between 1985 and 2005. Beyond their stereotypical traits of entitlement, narcissism and wanting everything on demand, Gen Y's are creating a reputation for themselves as being civic minded with a strong sense of community. They prefer to work in teams of people to accomplish bigger missions and they care about meaningful work. They live in high density metropolitan areas and much like the Baby Boomers, they will change views on politics, social agendas, art, music, the way we shop for goods and services, the way we work, the way we live, etc. They are powerful in numbers and are at the beginning stages of understanding just how much they can accomplish. Look no further than the resignation of the President and Chancellor of the University of Missouri on November 10th and the 100+ US college campus protests that immediately followed. Gen Y has an opinion, the volume of individuals to affect mass change and social media to push their agenda.

As a collective group of owners and operators of investment real estate, we haven'tworked very hard to incorporate Gen Y as our customers or our staff to run our communities. But that is bound to change. Gen Y's are and will be saddled with student loan debt to the point where they need affordable housing if they have any hope of moving out of Mom & Dad's basement. And, we will need Gen Y as the Baby Boomers exit the work force with Gen X simply too small to fill the job market.

We must act now to invest time in learning how to appeal to Gen Y. Our traditional practices of 20 - 30 years ago were great at the time, but they won't fulfill our needs into the future. It is up to us to challenge ourselves. It is up to us to figure out how to successfully attract Gen Y, both as customers in our communities and as talent to staff our communities. We had best figure out how to drive this inevitable change for ourselves so we aren'tmerely responding to change after the fact.

Want to read more? Jim Ryan of Commonwealth Real Estate Services shared an interesting article with me about 2 20-year olds who bought their first home. A manufactured home. Google 'Trailer Park Nation & Millennial' and look for the Ozy.com article. Also, a profoundly interesting read about the impacts of various generations during these dark winter days is 'The Age Curve' by Kenneth Gronbach.

How Age-Restrictive Rules Can Violate the Fair Housing Act: Lessons From the Plaza Mobile Estates Case

The Plaza Mobile Estates Case

United States of America v. Plaza Mobile Estates, et al., 273 F. Supp. 2d 1084 (C.D Cal. 2003) is a federal district court decision which is a cause for concern to all landlords, particularly owners of manufactured home communities. The United States and residents of several mobilehome parks sued the owners and managers, seeking a declaration that various park rules violated the FHA based on familial status, and sought injunctive relief to preclude any further publication or enforcement of the discriminatory rules. The court found that the rules at issue were discriminatory on their face because they treated children, and thus families with children, differently and less favorably than adults-only households.

The decision was reached by the district court, not the Court of Appeals, and therefore is not binding precedent on federal appellate courts, or state courts. However, it is a published decision which can be cited as authority in federal district court litigation, particularly within the central district of California.

Rules Found Discriminatory

The court invalidated the “preambles” to the rules of several of the defendant mobilehome parks which stated that the park was “designed and built as an adult facility” or “designed as an ADULT facility.” [Emphasis added]. The court found that these preambles were clear examples of illegal “steering.” The court recognized that while the preambles were not outright refusals to sell or rent to families with children, they clearly suggested a preference for adults only and discouraged families with children from applying for residency.

The specific age restrictive rules invalidated by the court fell into three categories: (1) absolute prohibitions; (2) adult supervision requirements; and (3) hours of access restrictions.

The absolute prohibitions included those rules that: (1) prohibited all children under 18 (or 21) years old from using the billiard room and from riding bicycles; (2) prohibited all children under 16 (or 18) years old from using the therapeutic pool; (3) prohibited all children under 14 (or 18) years old from using the sauna or jacuzzi; (4) required all children under 8 years old to be confined to rear fenced yard of family residence; and (5) prohibited all children from playing on park streets and any other common areas.

The court found that while the health and safety of the children and other residents of the park were legitimate concerns, these absolute prohibitions were not the least restrictive means to achieve such ends. It noted that any concerns that the community owners may have had were not necessarily linked to age, and any concerns about problem behavior could be addressed with the use of non-age related rules. The court held that requiring adult supervision rather than imposing an absolute ban was clearly a less restrictive means of achieving the park’s legitimate goals. However, the court also invalidated a number of adult supervision requirements.

Adult supervision requirements invalidated by the court included those rules that required adult supervision for: (1) children under 18 years old using recreational facilities (recreation building and/or clubhouse), swimming pool, sun deck, saunas and laundry room; (2) children under 14 years old using recreational facilities, swimming pool and tennis courts, and riding bicycles; (3) children under 10 years old using recreational facilities; and (4) all children walking around the park.

As with the absolute prohibitions, these adult supervision requirements were likewise found not the least restrictive means to achieve any health and safety objectives. The court commented that the park’s concerns could be addressed by the use of rules, and that bicycle and pool safety would be better served with a proficiency requirement.

The hours of access restrictions included those rules that prohibited use of the swimming pool and sundeck to children under 18 years old except during specified hours. The court summarily rejected defendants’ attempt to justify these swimming pool hours restrictions as “equitably accounting for the interest of tenants,” noting that this clearly was not a compelling interest. The court further noted that the interest or desire of the adult tenants to discriminate against children could never justify such discrimination.

Compelling Business Necessity Standard

Having found that the age-restrictive rules were discriminatory on their face, the court held that the burden passed to the community owners to justify the rules. The standard applied by the court was whether the owners had a legitimate justification for the discrimination rising to the level of a compelling business necessity as to which the least restrictive means to achieve such end was used. Both criteria, compelling business necessity and least restrictive means, must be satisfied to defeat the claim of unlawful discrimination. The court in Plaza Mobile Estates found that the owners had failed to make this showing.

HUD Approval: No Defense

What is particularly distressing about the Plaza Mobile Estates opinion is that the court invalidated rules which had been approved as part of a Conciliation Agreement entered into with the intervention and approval of HUD. The owners contended that HUD’s approval of the Conciliation Agreement required the conclusion that the rules approved thereunder did not violate the FHA. The court noted that it is the court, not HUD, that is the final arbiter in determining whether the rules are in compliance with the FHA. It therefore appears that a community owner cannot even rely upon the opinion of HUD or the state enforcement agency as a defense against a claim of discrimination.

How Community Owners Can Protect Themselves

In view of the Plaza Mobile Estates decision, landlords need to carefully review their rules and regulations and revise them to eliminate rules which appear to discriminate against families with children. Particularly suspect are rules which expressly refer to children, or persons under age 18. Other rules, which may not contain an express age restriction, are still subject to attack if they have a disparate impact on persons under age 18 or tend to “steer” toward an “adult only” preference.

For instance, community advertising and residency documents obviously must not contain discriminatory phrases and language, such as “adults only,” “retirement community,” or “community for active adults.” In “all-age” communities, there should not be any “adults only” restrictions on the use of common areas, recreational facilities or equipment (except where authorized by state law or regulations). Access to the community’s facilities should not be prohibited to children, and unreasonable supervision requirements must be avoided.

Also, review signs posted throughout the community (whether in the clubhouse or the laundry room, by the swimming pool, or along the streets) for discriminatory words or phrases.

For approval of new tenants, have written policies and guidelines and follow them consistently. Always offer an application to a potential resident, and keep those applications you reject (as well as those you accept).

In speaking to prospective residents, avoid words which might discourage a family with children; avoid “steering” someone to another community or to limited areas within your own community; do not ask about the ethnic, religious or national background of any applicant; do not discuss the problems which a disabled person may encounter in a manufactured home or in your community. Certain words should be avoided, such as: compatible (as in, “Your type is not compatible with our community”), prefer (as in, “We prefer married couples”), discourage (as in, “We discourage children because we have so many elderly residents”), or suitable (such as, “A mobilehome park is not suitable for small children”).

Even if you have adopted good policies and procedures and have trained your management team to be aware of fair housing principles, there is the chance that the policies are not followed. Make sure your staff does follow through!

The following are some additional suggestions:

--Always take an application from any interested person.

--Deal the same with all prospective residents: be pleasant, courteous and non-judgmental. Answer all questions.

--Keep a record of each inquiry and try to obtain as much information as possible about each person. Also, keep all tenancy and application records for at least two years.

What age-restrictive rules are still permissible? At least in California, it is probably still permissible to require children under the age of 14 to be supervised by an adult (but not specifically a parent) when using the swimming pool or spa pool. This is based upon section 65539 of Title 22 of the California Code of Regulations (“CCR”), which provides that, where no lifeguard service is provided, a warning sign shall be placed in plain view which shall state, “Children Under the Age 14 Should Not Use Pool Without an Adult in Attendance.” Interestingly, even this code section only says “should,” not “shall.” Local counsel should be consulted regarding similar provisions in other states.

For years in California, the CCR language has been used by analogy to require adult supervision for the use of other recreational facilities. It is no longer safe to do this. The community may still be able to require adult supervision where needed to minimize risk of injury or death in situations in addition to the swimming pool and spa pool situation referenced in the CCR. Again, the adult supervision cannot be restricted to a parent; any responsible adult can perform the required supervision.

A park may be able to prohibit an activity which is more likely to be engaged in by children than by adults if there is an express ordinance in the municipality where the park is located prohibiting this activity. A primary example of this would be a municipal ordinance prohibiting skateboarding.

It must always be kept utmost in mine that the basic test is that any age-restrictive rule or regulation must satisfy both criteria stated by the Plaza Mobile Estates court: There must be a compelling business necessity for the policy, and the rule must be the least restrictive means to achieve that policy. This is a standard which is difficult to satisfy. Community owners should consult with legal counsel in reviewing and revising their rules to minimize the risk of liability under state and federal laws prohibiting discrimination against families with children.

Robert G. Williamson, Jr. and Linda J. Lester are attorneys with Hart, King & Coldren in Santa Ana, California. They specialize in manufactured housing issues.

Answer: Domestic violence is a defense to eviction, but only under the proper circumstances. I have set out the law in its entirety below. As you can see, the law presumes there has been a violent act for which the landlord is evicting everyonein the space, i.e. the villain and the victim. The domestic violence law says you cannot evict the victim for the violent act. But it also says the villain and the victim are still responsible for rent. It also requires a valid third-party affirmation to the event.

In short, based on your question, it does not sound as if the domestic violence statute will provide a defense to an action for nonpayment of rent. You should tell the victim that you do not believe the domestic violence law applies in these circumstances (i.e. nonpayment of rent) and that if her attorney believes otherwise, he must call you immediately and explain why. Is she is a serial late pay for which you have to issue multiple non-payment of rent notices, you might consider a 3-strikes notice under ORS 90.630(8).

DOMESTIC VIOLENCE, SEXUAL ASSAULT OR STALKING

90.445 Termination of tenant committing criminal act of physical violence. (1) If a tenant perpetrates a criminal act of physical violence related to domestic violence, sexual assault or stalking against a household member who is a tenant, after delivery of at least 24 hours' written notice specifying the act or omission constituting the cause and specifying the date and time of the termination, the landlord may:

(a) Terminate the rental agreement of the perpetrating tenant, but may not terminate the rental agreement of the other tenants; and

(b) If the perpetrator of the criminal act of physical violence related to domestic violence, sexual assault or stalking continues to occupy the premises after the termination date and time specified in the notice, seek a court order under ORS 105.128 to remove the perpetrator from the premises and terminate the perpetrator's tenancy without seeking a return of possession from the remaining tenants.

(2) A landlord that terminates the tenancy of a perpetrator under this section may not require the remaining tenants to pay additional rent or an additional deposit or fee due to exclusion of the perpetrator.

(3) The perpetrator is jointly liable with any other tenants of the dwelling unit for rent or damages to the premises incurred prior to the later of the date the perpetrator vacates the premises or the termination date specified in the notice.

(4) The landlord's burden of proof in a removal action sought under this section is by a preponderance of the evidence. [2007 c.508 _3]

90.449 Landlord discrimination against victim; exception; tenant defenses and remedies. (1) A landlord may not terminate or fail to renew a tenancy, serve a notice to terminate a tenancy, bring or threaten to bring an action for possession, increase rent, decrease services or refuse to enter into a rental agreement:

(a) Because a tenant or applicant is, or has been, a victim of domestic violence, sexual assault or stalking.

(b) Because of a violation of the rental agreement or a provision of this chapter, if the violation consists of an incident of domestic violence, sexual assault or stalking committed against the tenant or applicant.

(c) Because of criminal activity relating to domestic violence, sexual assault or stalking in which the tenant or applicant is the victim, or of any police or emergency response related to domestic violence, sexual assault or stalking in which the tenant or applicant is the victim.

(2) A landlord may not impose different rules, conditions or standards or selectively enforce rules, conditions or standards against a tenant or applicant on the basis that the tenant or applicant is or has been a victim of domestic violence, sexual assault or stalking.

(3) Notwithstanding subsections (1) and (2) of this section, a landlord may terminate the tenancy of a victim of domestic violence, sexual assault or stalking if the landlord has previously given the tenant a written warning regarding the conduct of the perpetrator relating to domestic violence, sexual assault or stalking and:

(a) The tenant permits or consents to the perpetrator's presence on the premises and the perpetrator is an actual and imminent threat to the safety of persons on the premises other than the victim; or

(b) The perpetrator is an unauthorized occupant and the tenant permits or consents to the perpetrator living in the dwelling unit without the permission of the landlord.

(4) If a landlord violates this section:

(a) A tenant or applicant may recover up to two months' periodic rent or twice the actual damages sustained by the tenant or applicant, whichever is greater;

(b) The tenant has a defense to an action for possession by the landlord; and

(c) The applicant may obtain injunctive relief to gain possession of the dwelling unit.

(5) Notwithstanding ORS 105.137 (4), if a tenant asserts a successful defense under subsection (4) of this section to an action for possession, the tenant is not entitled to prevailing party fees, attorney fees or costs and disbursements if the landlord:

(a) Did not know, and did not have reasonable cause to know, at the time of commencing the action that a violation or incident on which the action was based was related to domestic violence, sexual assault or stalking; and

(b) Promptly dismissed tenants other than the perpetrator from the action upon becoming aware that the violation or incident on which the action was based was related to domestic violence, sexual assault or stalking. [2007 c.508 _4; 2011 c.42 _9]

90.453 Termination by tenant who is victim of domestic violence, sexual assault or stalking; verification statement. (1) As used in this section:

(a) "Immediate family member" means, with regard to a tenant who is a victim of domestic violence, sexual assault or stalking, any of the following who is not a perpetrator of the domestic violence, sexual assault or stalking against the tenant:

(A) An adult person related by blood, adoption, marriage or domestic partnership, as defined in ORS 106.310, or as defined or described in similar law in another jurisdiction;

(B) A cohabitant in an intimate relationship;

(C) An unmarried parent of a joint child; or

(D) A child, grandchild, foster child, ward or guardian of the victim or of anyone listed in subparagraph (A), (B) or (C) of this paragraph.

(b) "Qualified third party" means a person that has had individual contact with the tenant and is a law enforcement officer, attorney or licensed health professional or is a victim's advocate at a victim services provider.

(c) "Verification" means:

(A) A copy of a valid order of protection issued by a court pursuant to ORS 30.866, 107.095 (1)(c), 107.716, 107.718 or 163.738 or any other federal, state, local or tribal court order that restrains a person from contact with the tenant;

(B) A copy of a federal agency or state, local or tribal police report regarding an act of domestic violence, sexual assault or stalking against the tenant;

(C) A copy of a conviction of any person for an act of domestic violence, sexual assault or stalking against the tenant; or

(D) A statement substantially in the form set forth in subsection (3) of this section.

(d) "Victim services provider" means:

(A) A nonprofit agency or program receiving moneys administered by the Department of Human Services or the Department of Justice that offers safety planning, counseling, support or advocacy to victims of domestic violence, sexual assault or stalking; or

(B) A prosecution-based victim assistance program or unit.

(2)(a) If a tenant gives a landlord at least 14 days' written notice, and the notice so requests, the landlord shall release the tenant and any immediate family member of the tenant from the rental agreement.

(b) The notice given by the tenant must specify the release date and must list the names of any immediate family members to be released in addition to the tenant.

(c) The notice must be accompanied by verification that the tenant:

(A) Is protected by a valid order of protection; or

(B) Has been the victim of domestic violence, sexual assault or stalking within the 90 days preceding the date of the notice. For purposes of this subparagraph, any time the perpetrator was incarcerated or residing more than 100 miles from the victim's home does not count as part of the 90-day period.

(3) A verification statement must be signed by the tenant and the qualified third party and be in substantially the following form:

______________________________________________________________________________

QUALIFIED THIRD PARTY

VERIFICATION

______________________

Name of qualified third party

______________________

Name of tenant

PART 1. STATEMENT BY TENANT

I, ________(Name of tenant), do hereby state as follows:

(A) I or a minor member of my household have been a victim of domestic violence, sexual assault or stalking, as those terms are defined in ORS 90.100.

(B) The most recent incident(s) that I rely on in support of this statement occurred on the following date(s):_________.

___The time since the most recent incident took place is less than 90 days; or

___The time since the most recent incident took place is less than 90 days if periods when the perpetrator was incarcerated or was living more than 100 miles from my home are not counted. The perpetrator was incarcerated from ____________ to____________. The perpetrator lived more than 100 miles from my home from ___________ to___________.

(C) I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.

______________________

(Signature of tenant)

Date: ________

PART 2. STATEMENT BY QUALIFIED THIRD PARTY

I, ________(Name of qualified third party), do hereby verify as follows:

(A) I am a law enforcement officer, attorney or licensed health professional or a victim's advocate with a victims services provider, as defined in ORS 90.453.

(B) My name, business address and business telephone are as follows:

___________________________

___________________________

___________________________

(C) The person who signed the statement above has informed me that the person or a minor member of the person's household is a victim of domestic violence, sexual assault or stalking, based on incidents that occurred on the dates listed above.

(D) I reasonably believe the statement of the person above that the person or a minor member of the person's household is a victim of domestic violence, sexual assault or stalking, as those terms are defined in ORS 90.100. I understand that the person who made the statement may use this document as a basis for gaining a release from the rental agreement with the person's landlord.

I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.

______________________

(Signature of qualified third party

making this statement)

Date: ________

______________________________________________________________________________

(4) A tenant and any immediate family member who is released from a rental agreement pursuant to subsection (2) of this section:

(a) Is not liable for rent or damages to the dwelling unit incurred after the release date; and

(b) Is not subject to any fee solely because of termination of the rental agreement.

(5) Notwithstanding the release from a rental agreement of a tenant who is a victim of domestic violence, sexual assault or stalking and any tenant who is an immediate family member of that tenant, other tenants remain subject to the rental agreement.

(6) A landlord may not disclose any information provided by a tenant under this section to a third party unless the disclosure is:

(a) Consented to in writing by the tenant;

(b) Required for use in an eviction proceeding;

(c) Made to a qualified third party; or

(d) Required by law.

(7) The provision of a verification statement under subsection (2) of this section does not waive the confidential or privileged nature of a communication between the victim of domestic violence, sexual assault or stalking and a qualified third party. [2003 c.378 _4; 2007 c.508 _9; 2011 c.42 _9a]

90.456 Other tenants remaining in dwelling unit following tenant termination or exclusion due to domestic violence, sexual assault or stalking. Notwithstanding the release of a tenant who is a victim of domestic violence, sexual assault or stalking, and any immediate family members of that tenant, from a rental agreement under ORS 90.453 or the exclusion of a perpetrator of domestic violence, sexual assault or stalking as provided in ORS 90.459 or 105.128, if there are any remaining tenants of the dwelling unit, the tenancy shall continue for those tenants. Any fee, security deposit or prepaid rent paid by the victim, perpetrator or other tenants shall be applied, accounted for or refunded by the landlord following termination of the tenancy and delivery of possession by the remaining tenants as provided in ORS 90.300 and 90.302. [2003 c.378 _6; 2007 c.508 _10; 2007 c.508 _11; 2011 c.42 _9b]

90.459 Change of locks at request of tenant who is victim of domestic violence, sexual assault or stalking. (1) A tenant may give actual notice to the landlord that the tenant is a victim of domestic violence, sexual assault or stalking and may request that the locks to the dwelling unit be changed. A tenant is not required to provide verification of the domestic violence, sexual assault or stalking to initiate the changing of the locks.

(2) A landlord who receives a request under subsection (1) of this section shall promptly change the locks to the tenant's dwelling unit at the tenant's expense or shall give the tenant permission to change the locks. If a landlord fails to promptly act, the tenant may change the locks without the landlord's permission. If the tenant changes the locks, the tenant shall give a key to the new locks to the landlord.

(3) If the perpetrator of the domestic violence, sexual assault or stalking is a tenant in the same dwelling unit as the victim:

(a) Before the landlord or tenant changes the locks under this section, the tenant must provide the landlord with a copy of an order issued by a court pursuant to ORS 107.716 or 107.718 or any other federal, state, local or tribal court that orders the perpetrator to move out of the dwelling unit.

(b) The landlord has no duty under the rental agreement or by law to allow the perpetrator access to the dwelling unit or provide keys to the perpetrator, during the term of the court order or after expiration of the court order, or to provide the perpetrator access to the perpetrator's personal property within the dwelling unit. Notwithstanding ORS 90.425, 90.435 or 90.675, if a landlord complies completely and in good faith with this section, the landlord is not liable to a perpetrator excluded from the dwelling unit.

(c) The perpetrator is jointly liable with any other tenant of the dwelling unit for rent or damages to the dwelling unit incurred prior to the date the perpetrator was excluded from the dwelling unit.

(d) Except as provided in subsection (2) of this section, the landlord may not require the tenant to pay additional rent or an additional deposit or fee because of the exclusion of the perpetrator.

(e) The perpetrator's tenancy terminates by operation of law upon an order described in paragraph (a) of this subsection becoming a final order. [2003 c.378 _5; 2007 c.508 _11]

Answer: Domestic violence is a defense to eviction, but only under the proper circumstances. I have set out the law in its entirety below. As you can see, the law presumes there has been a violent act for which the landlord is evicting everyonein the space, i.e. the villain and the victim. The domestic violence law says you cannot evict the victim for the violent act. But it also says the villain and the victim are still responsible for rent. It also requires a valid third-party affirmation to the event.

In short, based on your question, it does not sound as if the domestic violence statute will provide a defense to an action for nonpayment of rent. You should tell the victim that you do not believe the domestic violence law applies in these circumstances (i.e. nonpayment of rent) and that if her attorney believes otherwise, he must call you immediately and explain why. Is she is a serial late pay for which you have to issue multiple non-payment of rent notices, you might consider a 3-strikes notice under ORS 90.630(8).

DOMESTIC VIOLENCE, SEXUAL ASSAULT OR STALKING

90.445 Termination of tenant committing criminal act of physical violence. (1) If a tenant perpetrates a criminal act of physical violence related to domestic violence, sexual assault or stalking against a household member who is a tenant, after delivery of at least 24 hours' written notice specifying the act or omission constituting the cause and specifying the date and time of the termination, the landlord may:

(a) Terminate the rental agreement of the perpetrating tenant, but may not terminate the rental agreement of the other tenants; and

(b) If the perpetrator of the criminal act of physical violence related to domestic violence, sexual assault or stalking continues to occupy the premises after the termination date and time specified in the notice, seek a court order under ORS 105.128 to remove the perpetrator from the premises and terminate the perpetrator's tenancy without seeking a return of possession from the remaining tenants.

(2) A landlord that terminates the tenancy of a perpetrator under this section may not require the remaining tenants to pay additional rent or an additional deposit or fee due to exclusion of the perpetrator.

(3) The perpetrator is jointly liable with any other tenants of the dwelling unit for rent or damages to the premises incurred prior to the later of the date the perpetrator vacates the premises or the termination date specified in the notice.

(4) The landlord's burden of proof in a removal action sought under this section is by a preponderance of the evidence. [2007 c.508 _3]

90.449 Landlord discrimination against victim; exception; tenant defenses and remedies. (1) A landlord may not terminate or fail to renew a tenancy, serve a notice to terminate a tenancy, bring or threaten to bring an action for possession, increase rent, decrease services or refuse to enter into a rental agreement:

(a) Because a tenant or applicant is, or has been, a victim of domestic violence, sexual assault or stalking.

(b) Because of a violation of the rental agreement or a provision of this chapter, if the violation consists of an incident of domestic violence, sexual assault or stalking committed against the tenant or applicant.

(c) Because of criminal activity relating to domestic violence, sexual assault or stalking in which the tenant or applicant is the victim, or of any police or emergency response related to domestic violence, sexual assault or stalking in which the tenant or applicant is the victim.

(2) A landlord may not impose different rules, conditions or standards or selectively enforce rules, conditions or standards against a tenant or applicant on the basis that the tenant or applicant is or has been a victim of domestic violence, sexual assault or stalking.

(3) Notwithstanding subsections (1) and (2) of this section, a landlord may terminate the tenancy of a victim of domestic violence, sexual assault or stalking if the landlord has previously given the tenant a written warning regarding the conduct of the perpetrator relating to domestic violence, sexual assault or stalking and:

(a) The tenant permits or consents to the perpetrator's presence on the premises and the perpetrator is an actual and imminent threat to the safety of persons on the premises other than the victim; or

(b) The perpetrator is an unauthorized occupant and the tenant permits or consents to the perpetrator living in the dwelling unit without the permission of the landlord.

(4) If a landlord violates this section:

(a) A tenant or applicant may recover up to two months' periodic rent or twice the actual damages sustained by the tenant or applicant, whichever is greater;

(b) The tenant has a defense to an action for possession by the landlord; and

(c) The applicant may obtain injunctive relief to gain possession of the dwelling unit.

(5) Notwithstanding ORS 105.137 (4), if a tenant asserts a successful defense under subsection (4) of this section to an action for possession, the tenant is not entitled to prevailing party fees, attorney fees or costs and disbursements if the landlord:

(a) Did not know, and did not have reasonable cause to know, at the time of commencing the action that a violation or incident on which the action was based was related to domestic violence, sexual assault or stalking; and

(b) Promptly dismissed tenants other than the perpetrator from the action upon becoming aware that the violation or incident on which the action was based was related to domestic violence, sexual assault or stalking. [2007 c.508 _4; 2011 c.42 _9]

90.453 Termination by tenant who is victim of domestic violence, sexual assault or stalking; verification statement. (1) As used in this section:

(a) "Immediate family member" means, with regard to a tenant who is a victim of domestic violence, sexual assault or stalking, any of the following who is not a perpetrator of the domestic violence, sexual assault or stalking against the tenant:

(A) An adult person related by blood, adoption, marriage or domestic partnership, as defined in ORS 106.310, or as defined or described in similar law in another jurisdiction;

(B) A cohabitant in an intimate relationship;

(C) An unmarried parent of a joint child; or

(D) A child, grandchild, foster child, ward or guardian of the victim or of anyone listed in subparagraph (A), (B) or (C) of this paragraph.

(b) "Qualified third party" means a person that has had individual contact with the tenant and is a law enforcement officer, attorney or licensed health professional or is a victim's advocate at a victim services provider.

(c) "Verification" means:

(A) A copy of a valid order of protection issued by a court pursuant to ORS 30.866, 107.095 (1)(c), 107.716, 107.718 or 163.738 or any other federal, state, local or tribal court order that restrains a person from contact with the tenant;

(B) A copy of a federal agency or state, local or tribal police report regarding an act of domestic violence, sexual assault or stalking against the tenant;

(C) A copy of a conviction of any person for an act of domestic violence, sexual assault or stalking against the tenant; or

(D) A statement substantially in the form set forth in subsection (3) of this section.

(d) "Victim services provider" means:

(A) A nonprofit agency or program receiving moneys administered by the Department of Human Services or the Department of Justice that offers safety planning, counseling, support or advocacy to victims of domestic violence, sexual assault or stalking; or

(B) A prosecution-based victim assistance program or unit.

(2)(a) If a tenant gives a landlord at least 14 days' written notice, and the notice so requests, the landlord shall release the tenant and any immediate family member of the tenant from the rental agreement.

(b) The notice given by the tenant must specify the release date and must list the names of any immediate family members to be released in addition to the tenant.

(c) The notice must be accompanied by verification that the tenant:

(A) Is protected by a valid order of protection; or

(B) Has been the victim of domestic violence, sexual assault or stalking within the 90 days preceding the date of the notice. For purposes of this subparagraph, any time the perpetrator was incarcerated or residing more than 100 miles from the victim's home does not count as part of the 90-day period.

(3) A verification statement must be signed by the tenant and the qualified third party and be in substantially the following form:

______________________________________________________________________________

QUALIFIED THIRD PARTY

VERIFICATION

______________________

Name of qualified third party

______________________

Name of tenant

PART 1. STATEMENT BY TENANT

I, ________(Name of tenant), do hereby state as follows:

(A) I or a minor member of my household have been a victim of domestic violence, sexual assault or stalking, as those terms are defined in ORS 90.100.

(B) The most recent incident(s) that I rely on in support of this statement occurred on the following date(s):_________.

___The time since the most recent incident took place is less than 90 days; or

___The time since the most recent incident took place is less than 90 days if periods when the perpetrator was incarcerated or was living more than 100 miles from my home are not counted. The perpetrator was incarcerated from ____________ to____________. The perpetrator lived more than 100 miles from my home from ___________ to___________.

(C) I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.

______________________

(Signature of tenant)

Date: ________

PART 2. STATEMENT BY QUALIFIED THIRD PARTY

I, ________(Name of qualified third party), do hereby verify as follows:

(A) I am a law enforcement officer, attorney or licensed health professional or a victim's advocate with a victims services provider, as defined in ORS 90.453.

(B) My name, business address and business telephone are as follows:

___________________________

___________________________

___________________________

(C) The person who signed the statement above has informed me that the person or a minor member of the person's household is a victim of domestic violence, sexual assault or stalking, based on incidents that occurred on the dates listed above.

(D) I reasonably believe the statement of the person above that the person or a minor member of the person's household is a victim of domestic violence, sexual assault or stalking, as those terms are defined in ORS 90.100. I understand that the person who made the statement may use this document as a basis for gaining a release from the rental agreement with the person's landlord.

I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.

______________________

(Signature of qualified third party

making this statement)

Date: ________

______________________________________________________________________________

(4) A tenant and any immediate family member who is released from a rental agreement pursuant to subsection (2) of this section:

(a) Is not liable for rent or damages to the dwelling unit incurred after the release date; and

(b) Is not subject to any fee solely because of termination of the rental agreement.

(5) Notwithstanding the release from a rental agreement of a tenant who is a victim of domestic violence, sexual assault or stalking and any tenant who is an immediate family member of that tenant, other tenants remain subject to the rental agreement.

(6) A landlord may not disclose any information provided by a tenant under this section to a third party unless the disclosure is:

(a) Consented to in writing by the tenant;

(b) Required for use in an eviction proceeding;

(c) Made to a qualified third party; or

(d) Required by law.

(7) The provision of a verification statement under subsection (2) of this section does not waive the confidential or privileged nature of a communication between the victim of domestic violence, sexual assault or stalking and a qualified third party. [2003 c.378 _4; 2007 c.508 _9; 2011 c.42 _9a]

90.456 Other tenants remaining in dwelling unit following tenant termination or exclusion due to domestic violence, sexual assault or stalking. Notwithstanding the release of a tenant who is a victim of domestic violence, sexual assault or stalking, and any immediate family members of that tenant, from a rental agreement under ORS 90.453 or the exclusion of a perpetrator of domestic violence, sexual assault or stalking as provided in ORS 90.459 or 105.128, if there are any remaining tenants of the dwelling unit, the tenancy shall continue for those tenants. Any fee, security deposit or prepaid rent paid by the victim, perpetrator or other tenants shall be applied, accounted for or refunded by the landlord following termination of the tenancy and delivery of possession by the remaining tenants as provided in ORS 90.300 and 90.302. [2003 c.378 _6; 2007 c.508 _10; 2007 c.508 _11; 2011 c.42 _9b]

90.459 Change of locks at request of tenant who is victim of domestic violence, sexual assault or stalking. (1) A tenant may give actual notice to the landlord that the tenant is a victim of domestic violence, sexual assault or stalking and may request that the locks to the dwelling unit be changed. A tenant is not required to provide verification of the domestic violence, sexual assault or stalking to initiate the changing of the locks.

(2) A landlord who receives a request under subsection (1) of this section shall promptly change the locks to the tenant's dwelling unit at the tenant's expense or shall give the tenant permission to change the locks. If a landlord fails to promptly act, the tenant may change the locks without the landlord's permission. If the tenant changes the locks, the tenant shall give a key to the new locks to the landlord.

(3) If the perpetrator of the domestic violence, sexual assault or stalking is a tenant in the same dwelling unit as the victim:

(a) Before the landlord or tenant changes the locks under this section, the tenant must provide the landlord with a copy of an order issued by a court pursuant to ORS 107.716 or 107.718 or any other federal, state, local or tribal court that orders the perpetrator to move out of the dwelling unit.

(b) The landlord has no duty under the rental agreement or by law to allow the perpetrator access to the dwelling unit or provide keys to the perpetrator, during the term of the court order or after expiration of the court order, or to provide the perpetrator access to the perpetrator's personal property within the dwelling unit. Notwithstanding ORS 90.425, 90.435 or 90.675, if a landlord complies completely and in good faith with this section, the landlord is not liable to a perpetrator excluded from the dwelling unit.

(c) The perpetrator is jointly liable with any other tenant of the dwelling unit for rent or damages to the dwelling unit incurred prior to the date the perpetrator was excluded from the dwelling unit.

(d) Except as provided in subsection (2) of this section, the landlord may not require the tenant to pay additional rent or an additional deposit or fee because of the exclusion of the perpetrator.

(e) The perpetrator's tenancy terminates by operation of law upon an order described in paragraph (a) of this subsection becoming a final order. [2003 c.378 _5; 2007 c.508 _11]