Observations on Rental Assistance, Problems, and Pending Procedural Changes in Senate Bill 891

Observations on Rental Assistance, Problems, and Pending Procedural Changes in Senate Bill 891

Ask attorney Brad is a feature with attorney Bradley S. Kraus and this week the question is about rental assistance, Senate Bill 891, and a provision of the law that sunset on July 1 and what is still in place.  If you have a question for Brad, please feel out the form below.

By Bradley S. Kraus
Partner, Warren Allen LLP

As we drift further away from COVID-19 moratoriums and the laws associated with the same, normalcy continues to get closer and closer. Over the last year, landlords have grown accustomed to dealing with the deluge of laws related to pausing their rights under the Oregon Residential Landlord Tenant Act (ORLTA) and related unlawful detainer statutes. Phases like “Declaration of Hardship” under prior laws, and “documentation” of “pending rental assistance application” under the current legal framework, have worked their way into the lingo of landlord/tenant law.

As of July 1, the current legal framework shifts again. Senate Bill 891, the current eviction framework in place, allowed tenants to provide landlords with documentation that they applied for rental assistance, which caused an indefinite pause on a landlord’s termination rights or pursuit of the same. The pause existed until the application was no longer pending, or until October 1, whichever was earlier. However, as of July 1, that provision sunsets, taking the law back closer to its normal framework.

Tenants will still have the right to apply for rental assistance, and every opportunity should be made for them to do so. However, landlords will no longer be required to pause their termination rights or eviction cases simply because documentation of rental assistance is provided to them. While other technical requirements remain in place—i.e., the requirement that landlords provide the disclosures required under SB 891 with their notices—these requirements are less burdensome and place more importance on rental assistance providers to speed up their processing time, something that has been sorely lacking.

One of the fundamental issues with SB 891 was the lack of incentive or requirement for rental assistance providers to follow through with the process. More to the point, there was no requirement, incentive, or obligation to provide landlords with information about the status of the tenant’s rental assistance application. In other words, if certain workers within the Oregon Emergency Rental Assistance Program (OERAP) desired to stall landlords when they inquired about the status of their tenants’ rental assistance application—or even to confirm whether it existed—landlords had little ability to force a response. Often, the inability to procure information about what is happening is the most frustrating part, and OERAP’s unwillingness to answer simple questions exacerbates that issue frequently.

The above is but one problem with OERAP’s role in the rent assistance setup. Other issues remain unresolved—and in fact, do not cause OERAP any concern—related to payments being made directly to tenants. At some point, OERAP decided to transition from paying all landlords directly, to cutting checks directly to tenants. This is, was, and always will be, a recipe for disaster which results in tenants receiving a windfall if they choose to abscond with that money. Unfortunately, it happens with alarming frequency. Yet when alerted to that issue, what amounts to fraud appears to go unpunished.

For those landlords with eviction cases that have been paused due to SB 891, your pause remains in effect. However, landlords with active cases who are being stonewalled by OERAP do have some options. With an active case, attorneys know how to subpoena information, which cannot in most circumstances be ignored or quashed.

Senate Bill 891, the final COVID-19-era moratorium, is winding down. It is scheduled to sunset on October 1, 2022. Hopefully, we can all move back to normal again from there.

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Bradley Kraus, Portland attorney

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 at kraus@warrenallen.com or at 503-255-8795.

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