Terminating Tenancies: What is Allowed?

On March 29, 2023 Governor Tina Kotek signed HB 2001, an omnibus housing bill that includes changes to the current Oregon eviction process. The changes went into effect immediately.  Click here for a summary of these changes provided by our friends at Multifamily NW.

 

(June 28, 2022)

This is not legal advice.  This is summary information for educational purposes only.  Details on the precise methods for terminating tenancies is not included here.  Landlords should consult with their own legal counsel before taking any action to terminate a tenancy.          

Termination Type	Occupancy < 1 Year	Occupancy > 1 Year
No Cause Termination	Yes	No
Qualifying Landlord Reason Termination	No	Yes
Nonpayment of Emergency Period Rent, Fees, Charges	No	No
Nonpayment of Current Rent, Fees, Charges	Depends*	Depends*
Tenant Cause (other than nonpayment)	Yes	Yes

*Termination prohibited through September 30, 2022 if tenant has provided notification to landlord of application for emergency rental assistance by June 30, 2022.  Additional details below.  

No Cause Terminations

Within the first year of occupancy, landlords can terminate a month-to-month tenancy or terminate a fixed term tenancy at the end of the fixed term, with at least 30 days notice.   No cause terminations are prohibited after the first year of occupancy.  See ORS 90.427 for additional details.  Local jurisdictions may have additional requirements regarding length, content and delivery of notices.

Qualifying Landlord Reason (QLR) Terminations

These are terminations after the first year of occupancy for (1) demolition/conversion of the unit to nonresidential use, (2) remodeling when the unit is or will be unfit/unsafe for occupancy, (3) landlord or landlord’s immediate family member moving in to the dwelling unit or (4) landlord accepting an offer to purchase the dwelling unit, separately from any other dwelling unit, from a buyer who intends in good faith to occupy the dwelling unit as a primary residence.  These terminations are allowed with a 90-day notice.  Notices must state the reason for the notice and supporting facts.  Landlords who have an ownership interest in 5 or more dwelling units must also pay a relocation fee of one month’s rent along with the notice.  Landlords terminating under (4) above, must also provide evidence of the accepted offer to purchase.  For more information on QLR terminations, see ORS 90.427(5) and (6).  The City of Portland has additional notice and relocation fee requirements.

Nonpayment of Emergency Period (April 1, 2020 through June 30, 2021) Rent, Fees, Charges

Terminations for nonpayment of rent, charges or fees that came due between April 1, 2020 and June 30, 2021 are prohibited through February 28, 2022.  In addition, landlords must include a statement that eviction for nonpayment of rent, charges and fees accrued from April 1, 2020 to June 30, 2021 is not allowed before February 28, 2022 any time they communicate with a tenant about the tenant’s nonpayment balance from this period.  For more information, see SB 282, watch our webinar or review this summary from Warren Allen, LLP.

Nonpayment of Current Rent

10-Day Notice for Nonpayment of Current Rent

Through September 30, 2022, terminations for nonpayment of current rent (rent that came due after June 30, 2021) are allowed with service of a 10-day Nonpayment Notice if the following conditions are met:

• Tenant has not provided landlord with notification that tenant has applied for emergency rental assistance, or that the application is still pending, by no later than June 30, 2022 and prior to the tenant’s first eviction court date.
• At least 8 days of the rental period have passed without payment.
• The Property is not subject to the federal CARES Act.
• Landlord only wants to demand rent.
• Tenant has not partially paid some portion of the rent.

30-Day Notice for Nonpayment of Current Rent

Where the above 10-Day Notice for Nonpayment of Current Rent is not applicable, landlord may be able to utilize a 30-day notice of nonpayment if any of the following apply:

• Tenant has not provided landlord with notification that tenant has applied for emergency rental assistance, or that the application is still pending, by no later than June 30, 2022 and prior to the tenant’s first eviction court date.
• The Property is subject to the federal CARES Act.
• Landlord provides the emergency period nonpayment balance (rent accrued between April 1, 2022 and June 30, 2021) in the Notice.
• Landlord wants to demand items other than rent (utilities, late fees, etc.) in addition to rent.

This 30-day notice cannot be served until after the 5^th day of the month for which rent is demanded.  The notice must still include the SB 891 Rental Assistance Notice, HUD Notice if applicable,  and normal nonpayment termination notice language.  For all intents and purposes, this is just a 30-day for cause termination, where the cause is “monetary defaults.”  Payment deadlines have to be at least 14 days after service (17 days if mailed), and the tenant must have at least 30 days to cure the default (33 days if mailed).

 

While landlords are required to provide SB 891 Rental Assistance Notice statements through September 30, 2022, SB 891’s pause on evictions is only triggered if tenants provide notice of application for rental assistance by June 30, 2022.   Therefore, landlords who receive notice that the tenant has applied for rental assistance after June 30, 2022 are not required to pause the eviction action.

For eviction actions where the landlord has received notice of a rental assistance application on or before June 30, 2022, the following applies:  If a landlord has sent a termination notice but has not filed an eviction claim, and subsequently receives notice from the tenant that the tenant has applied for emergency rental assistance, the landlord must stop pursuing the termination until the earlier of two date: October 1, 2022, or the date that the rental assistance application is no longer pending.  On October 1, 2022, or once the emergency rental assistance application is no longer pending, the landlord can issue a new termination notice, if the tenant is still behind on current rent.  If a landlord has already filed for an eviction and the tenant provides notice that the tenant has applied for emergency rental assistance at or prior to first appearance in court, the proceeding will be stayed by the court during the pendency of the emergency rental assistance application.  After either party notifies the court that the emergency rental assistance application is no longer pending, the court will schedule the first appearance.

Landlords who receive notification that their tenant has applied for rental assistance after they have filed an eviction action but at or prior to first appearance may be benefited by promptly dismissing the action:  those who do so will not be liable to the tenant for prevailing party fees, costs or attorney fees in the event the court dismisses the action.

Along with any termination notice for nonpayment of rent, the landlord must include a notice that eviction for nonpayment of rent, charges and fees accrued from April 1, 2020 to June 30, 2021 is not allowed before February 28, 2022 and that if the tenant has applied for emergency rental assistance, the tenant is temporarily protected from eviction for nonpayment during the pendency of their emergency rental assistance application, along with other information.  The content of these notices is detailed in statute (SB 282 and SB 891) and landlords should not deviate from the statutory language.  Updated sample notices should be available soon from landlord-tenant forms providers such as Multifamily NW, Oregon Rental Housing Association and on the Oregon Courts landlord-tenant forms center (as of December 15, 2021 the notice on the Oregon Courts forms center had not been updated to reflect SB 891).

If a tenant has a previously resolved rental assistance application (or if the tenant’s rental assistance application is no longer pending), they are not entitled to another pause on nonpayment notices, even if they apply for rental assistance again.  Subsequent notice of nonpayment to these tenants do not need to include Rental Assistance Notice.

In addition to the safe harbor period and notice requirements described above, there are other modifications to the typical termination process for nonpayment of current rent, charges or fees (ORS 90.394). The 72/144 notice period described in ORS 90.394 will be a 10/13 day notice period until October 1, 2022 unless further extended by the legislature.

For more information see ORS 90.394, HB 4401, SB 278, SB 282 and SB 891.

 

For Cause Terminations

For cause terminations (other than nonpayment) are allowed.  For more information see ORS 90.392 (Termination of tenancy for cause; tenant right to cure violation); 90.396 (acts or omissions justifying termination 24 hours after notice); 90.398 (Termination of tenancy for drug or alcohol violations); 90.405 (effect of tenant keeping unpermitted pet); 90.445 (Termination of tenant committing criminal act of physical violence).

Beginning March 1, 2022, landlords are permitted to terminate a tenancy for cause if a tenant is allowing an unauthorized person to occupy the premises in excess of time limits in the rental agreement.  Landlords will need significant evidence to prove an unauthorized occupant.  If a landlord accepts rent while they know about the unauthorized occupant for 3 separate months, they can no longer terminate.  The landlord is considered to have approved of the occupant.Additional Rules in Local Jurisdictions

Local jurisdictions may have additional requirements regarding length, content and delivery of notices.  The City of Portland requires 90 day notices for no cause terminations, a notification of tenant’s rights and responsibilities to be included with all terminations, and additional rental relocation assistance for all no cause and qualifying landlord reason terminations, unless exempted.   The City of Milwaukie requires 90 day notice for all no cause terminations.  Other jurisdictions have their own rules.  Always consult local jurisdictions and talk with an attorney before terminating a tenancy.

Penalties

Penalties for unlawfully pursuing a termination or eviction can be steep.  Penalties under Oregon law can be as much as 3x rent plus actual damages, attorney’s fees and costs, and tenants can recover possession of the unit.

Debt Collection from Tenants for Unpaid Rent

Collections

Landlords can file small claims cases against tenants if the sum is worth less than $10,000 in total.  This is permitted even for debt accrued during the emergency period.

Credit Reporting

Landlords may not report a tenant’s nonpayment of rent, charges or fees that accrued on or after April 1, 2020 and before July 1, 2021 to any consumer credit reporting agency.

Claims Against Tenants

While normal claims under the Residential Landlord & Tenant Act can only be brought for one-year after the claim arose (the “statute of limitations”), SB 282 paused the one year time limit on all claims that existed between April 1, 2020 and March 1, 2022 (this is called “tolling”).  If you have a claim that has been tolled and you are unsure if your claim is within the statute of limitations, you are encouraged to seek out a lawyer’s expertise.

Application of Payment

ORS 90.220(9) is in effect once more and holds that landlords shall apply tenant payments in the following order, regardless of when COVID-19 impacted their ability to pay rent:

• Outstanding rent from prior rental periods;
• Rent for the current rental period;
• Utility or service charges;
• Late rent payment charges; and
• Fees or charges owed by the tenant or other fees or charges related to damage claims or other claims against the tenant.

Court Timelines

Timelines for eviction proceedings in Oregon courts may be delayed due to COVID-19.  The latest order of the Chief Justice of the Oregon Supreme Court extends timelines for F.E.D. (eviction) proceedings.  Contact your county court for more information on timelines.     

This is not legal advice.  This is summary information for educational purposes only.  Details on the precise methods for terminating tenancies is not included here.  Landlords should consult with their own legal counsel before taking any action to terminate a tenancy.

 

--Select a Filter Value--