Many landlords have questions about new drug laws that go into effect in 2021 so here are some of the issues around Oregon’s new drug laws from attorney Bradley Kraus.
By Bradley S. Kraus,
Attorney at Law, Warren Allen, LLP
If you asked 100 different people to summarize the year 2020 in one word or phrase, I would bet the answers would be as mixed as they were comical. The words “dumpster fire” come to mind for this author. For landlords specifically, the COVID-19 pandemic has required them to change how they do business, how they interact with their tenants, and—for smaller landlords especially—how they are expected to subsidize rents and pay their own mortgages, without help from the legislature.
It was also a year of strange changes in the law, as Oregon voters passed Measure 110 in November. Also known as the Drug Addiction Treatment and Recovery Act, this new law takes effect on February 1, 2021, and decriminalizes small amounts of illegal drugs for personal use. It is important to note that this new law does not legalize drugs. A person caught with a small number of drugs, including Schedule I drugs like heroin and LSD, will face “no more than a Class E violation,” subjecting them to $100 fine, which may be waived if they seek treatment.
For landlords, questions arise related to Oregon’s new drug laws. Must landlords now allow drugs to be on the rental premises? In other words, what rights do landlords have considering these new Oregon drug laws? For starters, a solid rental agreement should protect landlords from any issues.
Good rental agreements contain provisions requiring tenants to comply with all local, state, and federal laws. This last portion is critical. Setting aside the fact that possession is still technically not legalized in Oregon—only punished less—possession of these drugs is still illegal under federal drug laws and classifications. Accordingly, with a solid rental agreement, landlords still have the ability to prohibit the possession of these drugs on the premises, and take action should those provisions of the rental agreement be violated.
Most landlords will likely not know whether their tenants are possessing heavier drugs unless some other issue arises. In other words, if a tenant remains quiet, the world may never know that said tenant is sitting on several pounds of some illicit drug. However, a tenant who is raging through an all-night party with the assistance of cocaine is likely causing other issues. It is these “other issues” that landlords should also focus on.
While drugs may be punished less, these new laws do not provide a license to (a) destroy property, (b) threaten or harm others, or (c) disrupt the quiet use and peaceful enjoyment of other tenants. Each of these defaults are likely violations of the rental agreement, but also violations of the Tenants’ Duties Statute (ORS 90.325). In other words, if you confront your tenants about their conduct, and they—falsely—point to drugs being legal, you can simply point out that there have been no changes to the law regarding bad behavior. And while eviction moratoriums exist regarding non-payment of rent, no eviction moratoriums exist regarding conduct-based notices or evictions.
Landlords have faced many challenges during the COVID-19 pandemic. With the number of laws recently enacted and clearly directed at landlords, one would think landlords collectively caused this pandemic.
As troubling as this is, landlords should continue to focus on protecting good tenants from bad actors. While the people of Oregon have spoken as it relates to drug decriminalization, it is still illegal to possess these drugs. There can be no dispute, however, that the use of some drugs can cause erratic, disruptive, and sometimes violent, behavior. If landlords continue to focus on bad conduct, and continue to direct notices at the same, they will position themselves well to rid themselves of bad tenants, and to protect their many good ones.
Brad Kraus is a partner at Warren Allen LLP. His primary practice area is landlord/tenant law, but he also assists clients with various litigation matters, probate matters, real estate disputes, and family-law matters. A native of New Ulm, Minnesota, he continues to root for Minnesota sports teams in his free time. You can reach him via email firstname.lastname@example.org or 503-255-8795.