The pandemic and resulting economic slowdown have put many people at risk of losing their housing. The Oregon legislature has provided some protections for Oregonians who have been economically impacted. The federal government has also weighed in to provide protections. But many questions about eligibility and an uncertain future lies ahead. Without knowing how these legal protections may affect you, it is hard to determine what, if anything, you should be doing to prepare for the future. Like most things in the legal field, the devil is in the details, but certain general principles are known. Our hope is to provide some insight into those general principles so that you can determine whether you need additional information.
Oregon’s Eviction Ban
Oregon’s House Bill 4213 was signed into law by the Governor on June 30, 2020. It was effective immediately and, in combination with the Governor’s prior executive orders, retroactively. It is applicable throughout the State and provides protection to both residential and commercial tenants and there is no requirement that a tenant certify they have been financially impacted by the pandemic.
The law protects tenants from eviction for nonpayment of rent between April 1, 2020 and September 30, 2020. In other words, if you fail to pay rent, utility charges or other fees between April 1st and September 30th, a landlord cannot start the eviction process against you. In addition, the law prohibits a landlord from issuing a “termination without cause” notice – which is basically an eviction with no reason given – even if you are in the first year of a lease that would normally expire between April 1st and September 30th (the lease is legally extended until October 30, 2020.)
The Oregon eviction ban does NOT forgive your responsibility to pay the rent. Oregon’s law does give a tenant until March 31, 2021 to catch up on all the missed rent payments. However, to exercise this right you must notify your landlord that you intend to use the six-month grace period allowed by Oregon House Bill 4213. We urge such notice to be in writing and that tenants send that notice very early in October. If a tenant fails to provide this notice, then the landlord can charge a fee equal to 1/2 of one-month’s rent.
It is unclear if the Governor has the authority to extend this eviction ban beyond September 30, 2020. A separate eviction ban is being discussed at the County and City level in Multnomah County and Portland (as of 9/21/20).
Federal Eviction Ban
Under rule making authority granted to the Department of Health and Human Services and its agency, the Centers for Disease Control and Prevention, some residential (not commercial) evictions are halted from September 4, 2020 through December 31, 2020. If a State or local eviction ban provides greater protections, then the tenant enjoys the greater local protections.
To gain these protections, each tenant in a household must provide a sworn written declaration to the landlord or entity who has the authority to evict. We have provided a PDF on our website of the declaration that can be freely printed and used should you need it. The declaration requires a tenant to swear that:
- The tenant has exercised best efforts to obtain government housing assistance, AND
- The tenant did not have reportable taxable income in 2019 or received a stimulus check pursuant to the CARES Act or expects to earn $99,000 or less in 2020 ($198,000 or less if filing a joint return), AND
- The tenant is unable to pay the full rent due to loss of income or extraordinary out-of-pocket medical bills, AND
- The tenant is making best efforts to pay partial rent payments, AND
- If evicted the tenant would be homeless, would have to move into a homeless shelter, or would have to move into a close quarters residence, AND
- The tenant understands this does not eliminate the obligation to pay rent, fees, interest or penalties, AND FINALLY,
- The tenant understands that once the ban is lifted, the landlord may require all of the unpaid rent to be paid at once.
The federal eviction ban does NOT forgive your responsibility to pay and does not prohibit any type of eviction other than “failure to pay rent.” In other words, under the federal ban a landlord could issue a “no cause termination notice.” As you can see from above, the federal eviction ban does not include a “six-month repayment clause.”
It is possible that the federal government could extend this eviction beyond December 31, 2020.
There is talk at the state and local level (in Portland at least) of providing rent relief funds to assist tenants who cannot afford to repay the rent they were unable to pay during the pandemic. There may be assistance in a future federal relief bill. However, by most accounts the funds available will be a fraction of the past due rent. For example, through August the City of Portland estimated that there was around $125 million of unpaid rent owed in the City. At that rate it appears to be growing at the rate of about $25 million per month. The City and Multnomah County intend to deploy about $29 million to assist tenants. If that were divided equally it would cover about one month of past due rent, leaving several months still owed.
Back in April the Portland City Council asked the federal government to waive rent and mortgage payments that come due during the pandemic. We believe there is precisely a 0% chance that would ever happen as it likely would be subject to constitutional challenge as a federal taking of a property right without compensation (i.e. the landlord or lenders right to receive payment.)
The pandemic is an historical tragedy that will have repercussions that last years and is not likely to be fixed with government assistance. It is highly likely that many people are going to be trapped with unpaid rent, an inability to catch up on that rent and thus will face housing instability. Even if an individual returns to work soon, they would need to make significantly more money in the future to catch up for missed rent from the past. We are not landlord/tenant lawyers, we are debt relief attorneys and we are here to help should the need arise. We may have alternative strategies and would be happy to discuss your unique situation.