Governor Brown’s Executive Order 20-56 Summary:
Landlords who were planning on issuing certain termination notices after September 30 must now wait until December 31, 2020
On Monday, Governor Kate Brown issued Executive Order 20-56 (the EO), extending Oregon’s statewide ban on residential evictions until December 31. Executive Order 20-56 extends most residential property provisions included in the Legislature’s HB 4213 (First Special Session of 2020) including the ban on terminations for nonpayment and terminations without cause. However, there are also some differences. Importantly, the EO retains vital amendments Oregon REALTORS® advocated for in June as lawmakers debated HB 4213. Amid all the uncertainty government mandates like this can cause, REALTOR® advocacy has delivered key exemptions for Oregon brokers and their clients navigating the process.
- As was the case under HB 4213, landlords may still issue a 90-day notice after the first year of occupancy when the landlord has accepted an offer from a buyer who intends to occupy the home as their primary residence, pursuant to ORS 90.427(5)(d).
- Similar to HB 4213, the EO creates a relief valve for landlords who are prevented from issuing a no-cause eviction during the eviction moratorium period. Typically landlords can only issue no-cause evictions during the first year of occupancy because of SB 608, Oregon’s rent control law. However, the EO gives landlords the opportunity to issue a no-cause eviction for 30 days following the December 31 expiration of the EO if the tenancy crossed the one-year mark between April 1 and December 31.
- Unlike HB 4213, the EO allows for the termination of a tenancy under ORS 90.427(5)(c). This is when, after the first year of occupancy, the landlord intends for the landlord or a member of the landlord’s immediate family to occupy the dwelling unit as a primary residence and the landlord does not own a comparable unit in the same building that is available for occupancy.
- The EO does not apply to commercial tenancies.
REALTORS® and their clients should remember that when a landlord issues a 90-day termination notice pursuant to ORS 90.427(5)(c) or (5)(d) they must comply with all other applicable requirements that were in place prior to the eviction bans as a result of SB 608, including those outlined in ORS 90.427(6). For a summary of SB 608 see here.
Another difference between HB 4213 and the EO are the penalties. A violation of HB 4213 is a civil violation that could include injunctive relief (tenant can recover possession), three months rent plus actual damages. These penalties will still be in place for violations of the Grace Period (see below).
Penalties for violation the EO could include a civil penalty of up to $500 for violation of a public health order, a civil action from the state to enforce compliance, and conviction for a class C misdemeanor which includes penalties of $1250 per violation, or if the landlord gained money or property through the violation, up to double the amount the landlord gained.
Order of Payments
As does HB 4213, the EO requires landlords to apply payments in a specific order, which is different than the order that landlords are typically required to apply payments. Payments must go first to rent for the current rental period, then to utility or service charges, then to late rent, then to fees or charges related to tenant violations.
Impact on HB 4213 Notices and Grace Period
Under HB 4213 a landlord was allowed to issue a notice to a tenant prior to September 30 letting the tenant know that the tenant continues to owe any rent due. That notice is still allowed under the EO but the notice must now state that an eviction for nonpayment is not allowed before December 31, 2020.
The EO does not directly address the six month “Grace Period” that was provided by HB 4213. Under that provision, a landlord could not evict a tenant for nonpayment of rent, fees or charges that came due during the “Emergency Period” of April 1 – September 30 until March 31, 2021. As the law stands now—with both he EO and HB 4213 in effect—the grace period will still last until March 31, 2021 unless the legislature changes that in the future.
Under HB 4213 a landlord was allowed to issue a notice after September 30 that stated that the Emergency Period was over, that if rents that came due after the Emergency Period were not paid the tenant could be evicted, that the tenant is entitled to a 6-month grace period on rents that came due during the Emergency Period, and other provisions that are detailed in the bill and described in our HB 4213 summary. Nothing in the Governor’s EO prevents this notice from being delivered, however the notice must now state that eviction for nonpayment is not allowed before December 31, 2020. The requirements for this notice are precisely described in HB 4213, as modified by the EO, and landlords should proceed cautiously and consult an attorney if needed.
Comparison to federal CDC Eviction Ban
This new executive order from the Governor goes further than the federal government’s September 4 ban on landlords taking action against residential tenants for nonpayment. That order, issued through the Centers for Disease Control, maintained individual accountability by requiring a declaration of hardship and inability to pay be made and delivered to a landlord under penalty of perjury, and limited the ban to tenancies where nonpayment was a direct result of COVID-19-related financial hardship.
For a comparison of Oregon law and the CDC ban, see our comparison table.