Updated Dec 14, 2021 – SB 891 and SB 5561 / The Safe Harbor Law Extended – Landlords Again Shouldering Solutions, by Cindy Robert and Ron Garcia
As you have heard, the Oregon Legislature met on Dec 13th for a Special Session to take on the issue of past due rents and what they thought would lead to mass evictions. Knowing the outcome would inevitably be legislative action, RHA Oregon began working early with public policy makers to improve the bill and shorten extensions. Over the course of the last month we have met individually with Senate and House leaders, program Directors as well as the Governor.
So what are the results? They’re officially known now as SB 891 SB 5561, and they become effective immediately and retroactively, as emergency measures upon the Governor’s signature.
While tenants will have more time in “safe harbor” (i.e. they cannot be served with an eviction notice at all once they show they have applied for Emergency Rental Assistance), SB 891 provides more money to the system. This means Housing Providers will all get paid all that they are due (including beyond the 60 days that the previous legislation allotted through the Landlord Guarantee Program).
SB 5561 (the funding bill) & SB 891 (the policy bill) do the following:
Adds $100 million to the Oregon Emergency Rental Assistance Program (OERAP)
Adds $10 million to the Landlord Guarantee Program (this assures we get paid for those overdue rents that end up not applying or qualifying for safe harbor dollars)
Invests $100 million in eviction prevention programs moving forward
Provide OHS with $5 million to improve their practices and get money out the door to us
Gives renters until June 30, 2022 to apply for OERAP money
Closes the program all together by September 30, 2022 – (OHCS does not believe it will need that much time and assured legislature current applications will all be processed and paid by the end of March).
Speaker Tina Kotek (D-Portland) said “I called for this special session months ago because we had to honor our commitment to keep Oregonians housed during the pandemic. Today, we kept our promise and protected thousands from losing their homes this winter.”
But members of both chamber and both caucuses shared concerns that this is really about a State failure, specifically OHCS, and that landlords are paying the price for their inefficiency.
House Republican Leader Vikki Breese-Iverson (R-Prineville) said “This unnecessary special session was called because of yet another state agency failure. Democrat state leaders have not addressed the numerous errors and mistakes at OHCS that are hurting Oregonians. This is a complete failure of leadership. House Republicans urge significant changes to these agencies under Democrat control. We call on the Governor to dramatically increase oversight to ensure this money gets to real people in need.”
What’s the bottom line as a landlord with a tenant who has not paid rent in any month since July, 2021? You will get paid. However, you will certainly struggle, and it is clear that State put us in that position. Housing Providers must continue to forestall their demand for payment of rent until the State can distribute the new round of emergency dollars during the first half of 2022.
Updated Nov 19, 2021 – Questioning the Rental Assistance Pause
There definitely seems to be some competing narratives currently addressing Oregon’s Emergency Rental Assistance program.
Oregon Housing and Community Services (OHCS) is the agency in charge of processing tenants’ applications for assistance. They now say they have most of the $200 million aid package “obligated” and claim to be nearly out of funds. Because of this, they will shut down the program as of December 1st for at least 6 weeks while they can reassess and/or garner new federal dollars for a new round of assistance.
Yet this is happening even though amazingly less than 40% of the money that was allocated for rental assistance has been approved and paid to landlords, as of mid-November.
While they are calling for a halt to pay more aid, OHCS is asking landlords to urgently call tenants to encourage them to apply now! Along with this, Governor Brown is indicating she may call a special legislative session to adopt even more stringent restrictions on landlords prohibiting the terminations for non-paying tenants, forcing Housing Providers to continue to run their businesses at a loss, with no current income.
Lawmakers have suggested they want to extend the existing “safe harbor” law prohibiting evictions for 60 days when a tenant provides evidence that they applied for assistance, to 120 days! The additional insults to injury are 1) they are not advocating for extending the compensation for loss income from 60 to 120 days, and 2) by shutting down the ability to apply for rental aid, they are consequently eliminating the tenants’ chances for protections under the existing safe harbor law.
Does this sound confusing to you? I am frankly baffled by the logic and efforts being expended.
Fundamentally, to prevent court actions for non-payment of rent, the urgent action should be to radically address the backlog of payments and the problems with the current application process. What needs to happen? Pay the existing aid without delay. Two major improvements would include making it simpler for the tenants to apply (reducing the 27-page application down to a few paragraphs), and provide access to the application portal by landlords, allowing them to find out the status and correct or complete any data errors, which could help get it processed and approved.
Landlords do not want to evict tenants who owe them money if they know the money is going to be paid. Currently they have no clear way of finding out the status of the funds. The state needs to be more responsive to the existing program instead of banking on another future program and putting more pressure and burdens on the backs of rental property providers.
It seems that what is really needed now is clear accountability from the agency charged with executing the program, not more legislative action.
Updated October 22, 2021:
This update about the Landlord Guarantee Program includes applicant data from the first four weeks of program activity.
Home Forward has received 162 complete applications requesting: $464,071.80
- The average request per applicant is: $2,864
Home Forward has approved payment of $455,811
- They have paid 93% of applications approved for funding.
- Only 7% of approved applications are pending payment
Home Forward is keeping pace with processing applications as they come in
- They have reviewed and made a decision on 99% of complete applications
- Of the applications they have reviewed they:
- Approved about 76%
- Denied about 21%
- The primary reason for denial is ineligibility for the program. For example, the landlord received documentation from the tenant before July 1, 2021.
The number of incomplete applications being submitted is declining
- This week only 20% of applications submitted were incomplete.
- The cumulative share of incomplete applications dropped from 40% last week to 29% this week.
- This is likely because of the strategies implemented to support landlords in submitting complete applications
Updated September 20, 2021 WATCH THIS VIDEO:
Updated August 30, 2021:
Beginning Monday Aug 30, 2021, messages will come from the [email protected] email account to all Compensation Requests that have been successfully submitted. The email will include:
- The CR number, property number / location
- Current status:
- whether their CR has been assigned to a Housing Authority,
- whether it has been paid (by electronic transfer or check) / OR is it awaiting payment (by electronic transfer or check) / OR is it still needing to be finalized.
- Repayments: indicating that if they find the LCF funding to be incorrect / duplicated that they should reach out to [email protected] to do so. (and that we generally are not allowing full repayment of LCF once the grant agreement has been finalized, but that corrections are fine).
- 20% Payment: indicating that we will be sending the 20 percent payment amount on to the housing authorities in the coming weeks for payment, and that when that has been done they will get an email with the accounting of that payment along with the amendment to their grant agreement.
The Landlord Guarantee Program:
This fund is to compensate landlords for nonpayment that accrues during the ‘safe harbor’ period required under SB278. The fund is first come first serve and can cover up to 60 days of nonpayment. The application period for this fund is open and accessible to you if:
- Your tenant provided you (landlord) with documentation from a rent assistance provider that they applied for rent assistance between July 1, 2021 and Feb 28, 2022; and
- You delayed delivering a Termination Notice for Nonpayment, or delayed initiating or continuing an action for possession based on a termination notice for nonpayment for 60 days as required by State law (90 days if you live in Multnomah County) , and
- You accumulated nonpayment during the “safe harbor” period, and
- The tenant lives in Oregon.
If you meet this criteria, you can submit an application to cover nonpayment that accrued during the “safe harbor period” after 60 days have passed since you received the documentation of application from your tenant.
Because Landlords must wait 10 days to file for an eviction due to non-payment of rent, the earliest this fund is likely to be available to you will be Monday Sept. 13th (and that is only if a tenant gave you documentation from a rent assistance provider that they applied for rent assistance between July 1 and July 10th!). Their website is http://www.homeforward.org/LGP
The Director of Policy and Planning for HOME FORWARD will be the Guest Presenter at this month’s Member Meeting (via Zoom) on September 15, 2021 at 6:00 pm and will be giving our members a hands-on tutorial of how to apply for the funding! CLICK HERE TO REGISTER NOW
Updated August 05, 2021: *** THERE ARE IMPORTANT UPDATES TO TENANT LANDLORD LAW – see below.
Oregon’s Eviction Moratorium ended June 30, 2021. There are the 3 new bills that have become law during the 2021 Legislative Session that all Housing Providers NEED TO KNOW. SB 278 – the Safe Harbor bill that pauses evictions for 60 days. SB 291 – the Individualized Assessment that is required prior to denying applications to rent, based on criminal background. SB 282 – the Forgiveness Extension that allows Tenants until Feb 28, 2022 to repay “Covid-owed rent”.
Multnomah County has passed Ordinance 1296 requiring tenants be allowed 90 days of Safe Harbor from eviction.
The CDC announced the Federal Eviction Moratorium is extended through July 31, 2021. However, their ruling states that “The Order does not apply in any states… that have in place a moratorium on residential evictions that provides the same or greater level of public-health protection than the Order”. While this may be subject to other interpretation, it seems that Oregon’s measures meet that threshold, making the Federal Order mostly non-consequential.
Click here to find Oregon Emergency Rental Assistance – available to Tenants who owe past and current rent.
Click here for the Landlord Compensation Fund –
Samples of NEW FORMS needed as of July 1, 2021 can be seen by clicking on the links here:
SB 278 “Safe Harbor” Measure: Prevents landlords from delivering termination notices for nonpayment of rent if tenants have applied for rental assistance, (Emergency measure effective 7/1/2021 and sunsets on 3/1/2022). Analysis:
Provides that if a tenant provides a landlord with documentation that the tenant applied for rental assistance, then the landlord may not deliver a termination notice for nonpayment.
Allows landlords to initiate or continue eviction action 60 days from the time that tenant has delivered documentation of rental assistance application.
- Clarifies court judgement process and court discretion regarding scheduling a first appearance based on landlord and tenant compliance with the provisions of this Act.
- Clarifies that landlord participation in a rental assistance program is not exclusive to the Landlord Compensation Fund.
- Allows tenant to obtain injunctive relief if a landlord fails to comply with notification requirements as provided by this Act.
- Requires the Oregon Judicial Department (OJD) to translate the notice form into Spanish, Korean, Russian, Vietnamese, and Chinese languages and to display links to the forms prominently on the OJD main webpage. The measure also requires OJD to prepare a summary of the bill and deliver a copy of the summary to each circuit court for posting at the counter and website.
- Requires the Housing and Community Services Department (HCSD) to provide a dated application receipt for tenants who apply for rent assistance.
- Increases the amount a landlord is eligible for to 100% instead of 80% of funds under the Landlord Compensation Fund. HCSD is directed to make distributions to adjust the compensation for landlords whose applications were approved before the effective date of this Act.
- Provides for a grant to a third party (not HCSD) to make distributions to compensate landlords who have delayed termination notices or evictions under the provisions of this measure. This requirement sunsets on March 1, 2023 (Aligning timeline with extension of grace period for repayment until February 28, 2022).
The following written Disclosure must be given to Tenants who are delinquent on rent prior to filing for eviction:
THIS IS AN IMPORTANT NOTICE ABOUT YOUR RIGHTS TO PROTECTION AGAINST EVICTION FOR NONPAYMENT. For information in Spanish, Korean, Russian, Vietnamese or Chinese, go to the Judicial Department website at www.courts.oregon.gov. Until February 28, 2022, if you give your landlord documentation that you have applied for rental assistance at or before your first appearance in court, you may be temporarily protected from eviction for nonpayment. Documentation may be made by any reasonable method, including by sending a copy or photograph of the documentation by electronic mail or text message. “Documentation” includes electronic mail, a screenshot or other written or electronic documentation verifying the submission of an application for rental assistance. To apply for rental assistance, go to: www.oregonrentalassistance.org, or dial 211 or go to www.211info.org. To find free legal assistance for low-income Oregonians, go to www.oregonlawhelp.org.
SB 291 Requires adoption of new screening criteria, limits criminal behavior landlord may consider, requires landlord to conduct Individualized Assessments before denial (Effective 9/24//2021 and is a permanent change with no sunset date). Analysis:
- Requires landlords to provide written notice of screening and admission criteria upon requiring applicant screening charge.
- Clarifies that a landlord inform an applicant of applicant right to appeal a negative determination, provided that any right to appeal exists.
- Clarifies that a landlord must provide written notice explaining reasons for denial only for those applications to which screening and admissions criteria have been applied.
- Clarifies that a landlord may only consider criminal convictions or pending charges for conduct that is currently illegal under Oregon law.
- Allows landlords to consider applicant’s previous arrest only if the arrest resulted in certain charges for criminal conduct as provided by this Act, and the applicant was either convicted of the charges or the charges are pending and the applicant is not presently participating in a diversion, conditional discharge, or deferral of judgement program on the charges.
- Prior to denial, must conduct an individualized assessment of the applicant, including any supplemental evidence, taking into consideration:
- (A) The nature and severity of the incidents that would lead to a denial;
- (B) The number and type of incidents;
- (C) The time that has elapsed since the date the incidents occurred; and
- (D) The age of the individual at the time the incidents occurred
- If a landlord fails to comply with this section, the applicant may recover from the landlord $100
SB 282 Extends the “forgiveness period” for rent owed during the Eviction Moratorium, prohibits landlords from restricting Temporary Occupants, (emergency measure effective 5/19/21 and sunsets on 3/1/2022).
Tenants are granted a grace period to repay any rent and utilities owed during the Emergency Period without penalties or late fees lasting until February 28, 2022.
- Payments received from July 1, 2021 until February 28, 2022 by a tenant who owes charges that accrued during the Emergency Period (“covid charges”) must be applied first to current rent before being applied to the outstanding covid charges.
- Housing providers may not report tenant non-payment of rents accrued during the Emergency Period to consumer credit agencies.
- Housing providers may not consider non-payment of rents during the Emergency Period when evaluating a rental application.
- Housing providers are prohibited from imposing restrictions against tenants’ guests and or temporary occupants based on the maximum duration of stay in a tenant’s dwelling and enforcing lower maximum occupancies than those established by federal, state, or local laws.
- Housing providers may require Temporary Occupancy Agreements to be signed by all guest and may screen guests using standard criteria, except for credit-related indicators.
- Penalties allowed to tenants for housing providers’ violations:
- damages of 3 months’ rent along with actual damages and attorney fees,
- defense to eviction for housing providers’ failure to comply,
- ability to seek injunctive relief to regain possession of the premises,
- fines for retaliation increased from 2 months’ rent to 3 months’ rent or 3 times the actual damages incurred by tenant.
On August 3, 2021, the Center for Disease Control (CDC) issued an extension of their existing temporary ban on Landlords taking action against residential Tenants for nonpayment of any charges through October 3, 2021. As a federal requirement, this applies in all states.
As a reminder, the CDC Moratorium prohibits landlords from evicting any “covered persons” for nonpayment during the covered period (currently through October 3, 2021). A “covered person” is a residential Tenant who provides their Landlord with a declaration containing several statements. If you have received a CDC declaration from a tenant at any time, you may not evict a tenant for rent, utilities, late fees, or other amounts incurred related to use of the premises. This applies even if you issued a notice for nonpayment but have not yet evicted the tenant. If you have already initiated an eviction action and then receive the declaration, you may not proceed in the action, although you are not required to dismiss the case. While there is a standardized CDC form that tenants can use, the tenant need not use it as they may instead provide a signed statement with all of the required elements or simply state that they meet the definition of a “covered person.”
Persons who violate the CDC moratorium may be subject to a fine of up to $100,000 and/or one year in jail if the violation does not result in death, or a fine of up to $250,000 and/or one year in jail if the violation results in death. An organization, such as a property management company, who violates the CDC moratorium may be subject to a fine of up to $200,000 per event if the violation does not result in death and $500,000 per event if the violation results in death. For these reasons, we strongly encourage members to implement procedures and safeguards to ensure all declarations received from tenants are flagged and highlighted in the tenant file.
While the CDC order only applies in counties experiencing “substantial” or “high” levels of community transmission of COVID-19, in Oregon and Washington that currently applies to nearly every county and over 99.9% of tenants. The following link to the CDC risk tool identifies the counties and their respective levels of community transmission:
If you have any doubt about whether a tenant has provided you with documentation that triggers the CDC protections, we highly recommend that you seek legal advice to resolve the issue.
This article is not intended as legal advice. Please obtain advice of an attorney for any policy change or decisions regarding residential and commercial Landlord-Tenant matters.