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The Blame Game is a No-Win for Landlords

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By The Editors
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Guns in apartments have become a heated issue in many states so what liability may landlords have when it comes to guns or weapons on their rental property and who is to blame if something goes wrong? Attorney Denny Dobbins explores this issue.

Guns in apartments have become a heated issue in many states so what liability may landlords have when it comes to guns or weapons on their rental property and who is to blame if something goes wrong? Attorney Denny Dobbins explores this issue.

By Denny Dobbins

If you have spent more than 30 seconds in the last year watching cable news, you are more than familiar with something called “the blame game.”

Regardless of political party affiliation, age, race, gender, sexual orientation or any of a host of other categories, it appears that our society has become a place of great divide.

As a landlord you are not immune to this growing epidemic of blame and, in fact, you’re likely to take more than your fair share of blame when it comes to tenants and their problems.  After all, those same media outlets have spent years painting the picture of the big, bad landlord, creating an evil, money-focused image that even the happiest of tenants sometimes buy into believing.

Guns In Apartments Or On Your Rental Property

 Let’s create a blame framework for this by using a scenario where a tenant or guest of a tenant is injured by a weapon that the landlord allowed on the property.

To create some protection for you as a landlord we must first turn to the general principle of negligence law and liability.  It is helpful to understand the basic law and how to apply it in a real landlord-tenant situation.

Every landlord must have a handle on these basic principles, so we’ll first discuss the law and then get back to the questions.  Whatever the cause of the injury/damages to the tenant, occupant, guest, or invitee, the landlord does have some basic duties to the tenant in every residential lease, single-family or multifamily home of every kind and variety.

Here is the basic legal test for this scenario:

  1. Duty:  Generally, the duty of the landlord is to provide a reasonably safe place to live for the tenant, occupants, guests, and invitees (and there may be more than just this duty, depending on the lease and the applicable laws).  The basic legal theory about a landlord’s duty from settled case law is, “if the landlord knew or should have known about a danger or peril in, or on, the property, the landlord must ensure reasonable and timely remedies to prevent damages (injuries) to whom the landlord owes the duty of reasonable safety.”  Did the landlord have a duty to allow the tenant to have a weapon inside of the private, inside quarters of the home that the tenant controls in order to protect the tenant’s family/household?  That is a big question.  Arguably, if the tenant had nothing in their background that would put a landlord on notice that the tenant had a propensity for violence, and the tenant is an ordinary, law-abiding citizen, why would anyone not allow that person to have adequate home protection?  So, is there such a duty?  The question does not seem to be resolved by any court.  Although, some states prohibit a landlord from such a prohibition.  Do you want to fight this case in court?

Then:

  1. Causation: “But for” the landlord actions or inactions, would a particular event or damage have occurred?  “But for” the landlord allowing the tenant to have a gun or weapon for protection, would the injury/damage likely not have not occurred? Here the answer is probably, yes.

Then:

  1. Foreseeability: Even if there is a duty and there is causation, there is one more test to be applied before we can determine if the landlord actually has any liability for the damages/injuries. Was it foreseeable by a reasonable person that if the landlord allowed  the tenant to have a weapon to protect his/her private home that this very injury/damage would take place?  Here the answer is again probably, yes.

I suggest running any scenario where you as a landlord feel you may be vulnerable through the three prongs of the legal test as described above.

In fact, I invite you to do that right now with the above scenario, only reversed, where the landlord prohibited the tenant from having a weapon on the property and the tenant or their guest was injured because they did not have a weapon for self-defense.

What is your duty, what could your actions cause, and is a specific outcome foreseeable?

What is the course for best practices to avoid blame and liability?  Examine your property, your practices, and your policies through the lens of an attorney and make the proper adjustments to boost the protection of both your tenant and your property.  After all, the best way to avoid any blame at all is to anticipate potential problems, remedy them, and document what you have done.

About the author:

Denny Dobbins is vice-President and legal counsel for Rent Perfect, the creator of the Crime Free Addendum, a private investigator, and fellow investor.  Subscribe to the weekly Rent Perfect podcast (available on YouTube, Spotify, and Apple podcasts) to stay up to date on the latest industry news and for expert tips on how to manage your properties.

No Guns In My Apartments: Can A Landlord Say That And Put It In A Lease?

What was at issue in District of Columbia v. Heller?

Renting While Owing Guns

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Is Your Rental Property Accessible?

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By The Editors
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Drive-by accessibility testing is becoming more commonplace so is your rental property accessible and do you know common touchpoints?

Drive-by accessibility testing is becoming more commonplace so is your rental property accessible and do you know common touchpoints?

By The Fair Housing Institute

You look out of your office window and see a car slowly driving by.

They stop for a quick second and seem to be taking pictures.

Who is this? A potential resident, or perhaps a drive-by accessibility tester?

Drive-By Accessibility Testing

Drive-by accessibility testing is becoming more commonplace. This is an easy way for testers to find properties that are violating accessibility laws without ever having to set foot out of their vehicle.

Accessibility testers can come from multiple different sources. For example, they could be hired by an advocacy group or a state agency. Or they could be operating individually with the help of a lawyer. Regardless of whom they work for, they are out there ready to act if they stumble across any accessibility violations.

Once a violation is found, a claim can be filed, and so begins a very expensive and troublesome situation for any property management company to deal with. Keep in mind that once a lawsuit is filed, it is not limited to the specific violation already found; your entire property is put under the microscope, with each additional violation added on.

Is Your Property Truly Accessible?

Most landlords and property management companies are aware of common accessibility touchpoints, such as having accessible parking spots, adequate signage, and a clear path to the main entrance. In addition, there are many other laws and different requirements when it comes to accessibility, either federal, state, or sometimes municipal, and some of them may overlap.

For example, the Americans with Disabilities Act (ADA) law states that for every 25 parking spaces, you must have one accessible space, regardless of the age of the building. However, the Fair Housing Act also comes into play with its rules as far as accessibility for buildings that were built after March of 1991. Knowing which laws are applicable to you can get tricky, and it can become difficult to ensure that your property is truly accessible.

Get the Help You Need

One way to combat this is by hiring an accessibility consultant or attorney to do a walk-through of your property to identify any potential violations. If you are hesitant due to the cost, keep in mind what the cost will be if a lawsuit happens. Lawyer fees, court costs, and potential fines or damage compensation are all on top of what will have to be paid out for any needed repairs or renovations. So, in the long run, it’s more than cost-effective; it can also potentially save you thousands of dollars.

If accessibility problems have been identified, it’s best to avoid the flawed thinking that you can just slap some paint on a few spots or put up a few more signs and call it a day. Create a list with the most visible issues being at the top and immediately create a plan to tackle them in an appropriate and lawful manner. By repairing or modifying the most visible or outside problems first, you are not giving the drive-by testers any reason to stop and investigate further. Once those repairs are completed, you can move on to any indoor maintenance that needs to be addressed to fully ensure that your property is compliant, inside and out.

By taking a proactive approach, you can avoid many costly and time-consuming problems. Keeping up to date on fair housing laws and training will aid in this. If your property meets its accessibility criteria, then you can have peace of mind that the person who was snapping pictures just might want to live there.

About the author:

In 2005, The Fair Housing Institute was founded as a company with one goal: to provide educational and entertaining fair-housing compliance training at an affordable price at the click of a button.

 

My Tenant Has Taken Over Our Shared Driveway; What Do I Do?

By
Hank Rossi
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My Tenant Has Taken Over Our Shared Driveway; What Do I Do?

How should a landlord deal with a tenant who has taken over a shared driveway is the question this week for Ask Landlord Hank. Remember Hank is not an attorney and is not offering legal advice. If you have a question for him please fill out his form below.

Dear Landlord Hank:

My tenant has taken over my driveway with her SUV, picnic table, bike, scooter, and plastic pool.

Although there is room for three or four cars in the driveway, with all her paraphernalia, there is no way for me or my family or workers maintaining my house to use the driveway. What rights do I have? I have already told her I will not be renewing the six-month lease we signed.

Dear Landlady Fay,

The lease is the governing document of your landlord-tenant relationship.

There should be a vehicles clause stating that the tenant’s vehicle must be properly parked. There should be another clause relating to use of premises stating that tenant must keep premises clean and sanitary and not disturb residents or the peaceful and quiet enjoyment of the premises.

Your inquiry sounds as if the tenant is living in your house or on your property. Remember, it is your property and you are the boss. She is not in charge. You are, but you must work within your lease.

She is violating the lease if she has her belongings strewn all over your exterior. Give her a three-day notice to clean up her things. Is there a better place for her to put these items? Could her picnic table and children’s toys go in the back yard?

Good luck!

Sincerely, Hank Rossi

Each week I answer questions from landlords and property managers across the country in my “Dear Landlord Hank” blog in the digital magazine Rental Housing Journal.  https://rentalhousingjournal.com/asklandlordhank/

 

My Tenant Has Taken Over Our Shared Driveway; What Do I Do?
Landlord Hank says, “Remember, it is your property and you are the boss. She is not in charge. You are, but you must work within your lease.” Hank is working on a renovation here of one of his properties.

Ask Landlord Hank Your Question

Ask veteran landlord and property manager Hank Rossi your questions from tenant screening to leases to pets and more! He provides answers each week to landlords.

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Should I Give Separate Leases to Roommate Tenants?

A Tenant Poured Grease Down Drain Who Is Responsible?

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Multifamily Rent Growth Slows But Still Strong

By
John Triplett
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Multifamily Rent Growth Slows But Still Strong

U.S. multifamily rent growth remains strong despite a deceleration in rent growth performance as asking rents are up 12.6 percent year-over-year through July, as demand continues to exceed supply, Yardi Matrix says in the July Multifamily Report.

Supply continues to be an issue and the National Multifamily Housing Council estimates that the U.S. needs 4.3 million new units built through 2035 to meet demand.

“Rent growth remains lofty just about everywhere by historical standards, but the rate of increase in high-growth metros is falling,” Yardi Matrix says in the report.

Here are some highlights in the report:

  • Multifamily performance continued to improve steadily in July, albeit modestly. National asking rents increased $10 in July, bringing the average rent in the U.S. to a record $1,717.
  • Year-over-year growth decelerated by 110 basis points to 12.6 percent, 260 basis points off the February peak of 15.2 percent.
  • Demand and rent growth remained strong throughout the country. Rent growth increased at least 10 percent year-over-year in 24 of Yardi Matrix’s top 30 metros. National occupancy rates were 96.0 percent for the third month in a row.
  • The single-family sector continues to grow at a steady pace. The average single-family asking rent increased by $7 in July to $2,092, while year-over-year growth dropped by 60 basis points to 11.2 percent.

Economic growth is slowing and polls show consumer confidence is weakening as the Federal Reserve has raised policy rates 150 basis points over the last two months in an effort to slow inflation.

“A weaker economy could cool gains, though apartment asking rents may not immediately respond to the Fed’s actions because rising mortgage rates have slowed the for-sale housing market.

“That might help demand for apartments as first-time homebuyers continue to rent and wait for a more opportune time to buy,” Yardi Matrix says in the report.

Apartment Rent Growth Fueled By Supply Issues

Yardi Matrix says, “A big part of the recent growth in apartment rents has been the supply-demand imbalance. The U.S. currently has a 600,000-unit apartment shortfall with another 3.7 million units needed through 2035 to meet demand.”

  • A new study commissioned by the National Multifamily Housing Council and the National Apartment Association details the severe shortage of multifamily housing in America.
  • The report estimates that the U.S. needs to build 4.3 million multifamily units by 2035 to meet the needs of the growing population.
  • The NMHC-NAA study recommends streamlining the entitlement process and incentivizing more affordable units.

Get the full report here.

Multifamily Rent Growth Slows But Still Strong
Chart courtesy of Yardi Matrix

About Yardi Matrix

Yardi Matrix researches and reports on multifamily, office and self-storage properties across the United States, serving the needs of a variety of industry professionals. Yardi Matrix Multifamily provides accurate data on 18+ million units, covering more than 90 percent of the U.S. population. Contact the company at (480) 663-1149.

 

Rate Of Rent Growth Slows At Midyear But Multifamily Still Poised For Strong Year

With Traditional Multifamily Rent Drivers Disrupted What Is The Future?

Another Bullish Year For Multifamily In 2022?

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2 Steps to Take Advantage of Your Real Estate Expertise to Save for Retirement

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By The Editors
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Consistency is King: Build Your Retirement with Real Estate

As markets fluctuate, laws change, and taxes inevitably increase, it is more apparent than ever before that American’s need to employ every advantage at their disposal to reach their retirement goals.

As a savvy real estate investor, you know that this asset is a consistent, high performing investment. But have you considered taking advantage of your expertise in your retirement strategy?

This can be accomplished in 2 simple steps. Step one – become a Trust Deed investor with a company that shares your values, such as mitigated risk, transparency, and predictable returns. Step two – establish a Self-Directed IRA with the leading IRA custodian in the real estate industry.

Since 2011, Ignite Funding has been providing private investors with passive investments in real estate throughout the Western U.S. Many choose to supplement their retirement savings by investing in Trust Deeds through a retirement account. Our sister company, Preferred Trust Company, has over 15 years of experience of working with Trust Deed investors, making them the leading IRA custodian for speed, quality of service, and excellence in client experience.

On Wednesday, August 24th at 10AM PST you are invited to a FREE virtual event where you will learn how to add passive investments collateralized by real property to your retirement portfolio.

Click the following link to save your spot today!

Click Here Now

Unable to attend the event on that date? CLICK HERE to schedule a one-on-one Zoom session at a time that works best for you.

PREFERRED TRUST COMPANY, LLC (“Preferred Trust”) | 6700 Via Austi Parkway | Suite 301 | Las Vegas, NV 89119 | 702.990.7892 | www. preferredtrustcompany.com | Financial Institutions Division of Nevada License No. TR10025. Preferred Trust performs duties of a custodian and as such, does not sell investments or provide investment, tax, or legal advice. Preferred Trust is committed to safeguarding all non-public personal information provided to us by our customers. Preferred Trust collects, retains, and uses customer information where we reasonably believe that it will help administer our business or provide services to our customers. We collect and retain customer information only for specific business purposes and upon request will inform customers why we are collecting and retaining the information. We use information to protect and administer records, accounts, and funds; to comply with certain laws and regulations; to help us design or improve our services; and to understand the financial needs of our customers. Preferred Trust is an accredited member of the Better Business Bureau.

 

Apartment Jobs Market Remains Strong

By
John Triplett
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The apartment jobs market remained strong in the second quarter of 2022, because of the robust U.S labor market fueling apartment demand.

The apartment jobs market remained strong in the second quarter of 2022, because of the robust U.S labor market fueling apartment demand.

The National Apartment Association’s Education Institute Apartment Jobs Snapshot showed employers posted more than 41,600 multifamily openings in the second quarter.

Although the apartment market has begun to cool, job growth in the apartment industry has not, according to the report.

Apartment Job Growth To Continue

Postings for multifamily jobs are predicted to grow 1.3 percent year-over-year by the end of the 2022, outpacing competing sectors.

Though migration and household formation slowed down, labor force demand in the apartment sector remained solid in Dallas, Los Angeles, Phoenix, Seattle, and Denver.

Demand for both leasing and maintenance talent increased by 0.7 and 0.1 percentage points, respectively. In contrast, property management job openings declined by 1.1 percentage points.

Apartment employers published an average of three job postings for each open position.

About the numbers:

Industry projections are built from Lightcast final industry data. Industry data comes from the Bureau of Labor Statistics’ Quarterly Census of Employment and Wages (QCEW) dataset, plus some supplemental datasets that provide information for industries not covered by QCEW. NAA Research also in addition to Lightcast and Bureau of Labor Statistics. Job postings as of June 30, 2022.

Portland, Seattle Rent Growth Up As Growth Cools In July Nationally

With Traditional Multifamily Rent Drivers Disrupted What Is The Future?

Another Bullish Year For Multifamily In 2022?

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How Thirdhand Smoke Affects Your Properties

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By The Editors
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Going smoke-free in your rentals is important as the dangers of thirdhand smoke are not well-known as toxic chemicals stick to surfaces.

Going smoke-free in your rentals is important as the dangers of thirdhand smoke are not well-known as toxic chemicals stick to surfaces.

By The Department of Health and Human Services
Tobacco Prevention and Control

The dangers of smoking and exposure to secondhand smoke are well-known. Inhaling nicotine and other toxic chemicals from cigarette smoke can cause illnesses like heart diseases, stroke and cancer.[1]

What isn’t as well-known are the effects of thirdhand smoke.

Thirdhand smoke (THS) is the chemical residue that lingers after secondhand smoke has disappeared from the air. While secondhand smoke is a combination of the smoke coming off a cigarette and the smoke exhaled by smokers, thirdhand smoke is the mixture of smoke and toxic chemicals that stick to surfaces and become embedded in household materials.[2] These materials include carpets, walls, furniture, and all surface areas that make up your residents’ homes.

Thirdhand smoke lowers the value of your properties by contaminating the carpet, furniture and walls. In fact, a news report from realtor.com revealed that smoking in a home and the resulting damage of thirdhand smoke can reduce property value by 29%.[3]

Creating a smoke-free policy protects your tenants, and your investments, from the costly effects of thirdhand smoke.

Does THS pose a danger to tenants once the home has been deep cleaned?

 The short answer: Yes. Thirdhand smoke can linger indoors for years. Despite deep cleaning and renovating, thirdhand smoke can be reemitted through dust and becomes embedded in carpets, furniture, fabric and building materials. Residents, including pets and children, can be exposed to this toxicity by just breathing within the same apartment that a previous smoking tenant occupied and through touching surfaces in past smokers’ homes.

New research shows that thirdhand smoke carries a unique chemical compound called 1-(N-methyl-N-nitrosamino)-1-(3-pyridinyl)-4-butanal (NNA). NNA is one of the many tobacco-specific nitrosamines – a group of cancer-causing compounds found in tobacco products. Tenants are exposed to NNA by touching surfaces polluted by thirdhand smoke or by inhaling dust contaminated with smoke residue.[4]

The U.S. Surgeon General has concluded that there is no safe level of exposure to tobacco smoke, including thirdhand smoke.[5] The greatest line of defense to protect your residents and your properties is to enact a smoke-free policy.

 Comprehensive smoking bans are essential for protecting everyone

 Thirdhand smoke is toxic to residents and other people entering your properties. It puts renters and their families at risk for a decision they did not choose to make. The benefits of going smoke-free not only support the health and well-being of your residents, but also support the longevity of your properties.

Find out what steps to take to ensure you are creating a healthy place for all to live and work. For more information on smoke-free housing, visit tobaccofreeutah.org. For free resources to help you quit, visit waytoquit.org.

[1] Danger of Tobacco, WayToQuit, Accessed July 2022.

[2] Thirdhand Smoke Frequently Asked Questions, Thirdhand Smoke Resource Center, Accessed July 2022.

[3] How Much Cigarette Smoke Decreases Resale Value, National Association of Realtors, Accessed July 2022.

[4] Major ‘third-hand smoke’ compound causes DNA damage — and potentially cancer, American Chemical Society, Accessed July 2022.

[5] The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. U.S. Department of Health and Human Services (2006), Accessed July 2022.

How Do I Prove A Tenant Is Smoking Marijuana In Violation of Lease?

Steps to Make Your Community Smoke-Free

Why Secondhand Smoke Is Bad for Business

Why Homeowners Should Go Smoke-Free

Secondhand smoke is dangerous for your tenants

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Rate Hikes Alter Single-Family Strategies For Investors

By
John Triplett
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The recent increase in interest rates is forcing institutions and investors to reassess growth strategies in the single-family rental market

The recent increase in interest rates is forcing institutions and investors to reassess growth strategies in the single-family rental market, according to a report from Yardi Matrix.

“With home sales cooling as rising mortgage rates bump up against soaring property values, institutional single-family rental property companies are adjusting growth strategies and facing the prospect of lower total returns,” the report says.

Growth in the near future, however, may be concentrated on build-to-rent projects, which are being delivered at record levels.

Institutional Ownership Of Single-Family Rentals

Institutions’ growth is currently focused on build-to-rent projects or acquiring portfolios from smaller owners.

“Institutional ownership of single-family rentals is growing rapidly as investors seek property segments with outsize growth prospects as long-term demand for single-family rentals solidifies.

“Institutions have committed more than $60 billion to buying single-family homes over the past year, according to various corporate announcements and news articles.”

The recent increase in interest rates is forcing institutions and investors to reassess growth strategies in the single-family rental market

Single-family Rentals Will Continue to be in Demand

While costs of homes has skyrocketed, demand for homes has continued to be strong. And there are multiple drivers for this demand.

“Some households decided during the pandemic lockdowns to move out of urban areas to suburbs to get more space for children and pets, and as a better environment to work from home.”

The recent increase in interest rates is forcing institutions and investors to reassess growth strategies in the single-family rental market
Chart courtesy of Yardi Matrix

Plus historically low interest rates contributed to a spike in home buying.

The average 30-year mortgage in the U.S. dipped to 2.8 percent in late 2021, about one-third of the 7.8 percent 50-year average and half of the 30-year 5.7 percent average, according to Freddie Mac.

The weakening of the single-family for sale market and affordability should keep the single-family for rent market strong, Yardi Matrix says in the report.

Families Will Continue To Rent

The industry looks to be fundamentally sound and poised for growth, Yardi Matrix says.

“Homeownership will likely be in for a bumpy ride over the next year or two as home prices reset and mortgage rates remain at recent higher levels, but that should be good news for single-family rentals. Families still aspire to the amenities provided by detached houses, and if they can’t afford to purchase, they will rent.

“What’s more, supply of single-family homes is likely to remain weak as supply-chain issues delay materials, development and labor costs skyrocket, and the entitlement process delays deliveries. The annualized number of new housing starts dropped 14% between April and June, moving in the wrong direction as the U.S. faces a long-term shortage of housing units estimated at 2 million to 4 million. While the housing shortage is unfortunate on many levels, it improves the investment prospects of the single-family rental market.”

Get the full report here.

About Yardi Matrix

Yardi Matrix researches and reports on multifamily, office and self-storage properties across the United States, serving the needs of a variety of industry professionals. Yardi Matrix Multifamily provides accurate data on 18+ million units, covering more than 90 percent of the U.S. population. Contact the company at (480) 663-1149.

Rate Of Rent Growth Slows At Midyear But Multifamily Still Poised For Strong Year

With Traditional Multifamily Rent Drivers Disrupted What Is The Future?

Another Bullish Year For Multifamily In 2022?

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One Sure Way To Increase Tenant Selection Success Rates

By
By The Editors
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One Sure Way To Increase Tenant Selection Success Rates

By Rebekah Near

Time and time again over the twenty-seven years working on the front lines of a Tenant and Employment background screening company I have witnessed the magic happen when a small or large apartment management company creates a clear and concise Tenant Selection Policy.

In selecting tenants their confidence becomes sky-high with a success rate to match.  Now isn’t this what we all need – a high success rate of finding great tenants? At the same time the liability from lawsuits is minimized.  When you attend a Fair-housing class one of the first things they encourage you to develop is such a policy.  Much of my time in the last five years has been helping landlords – both large management companies and residential management owners build a solid Rental Criteria.  It can be tricky.  It takes thought and knowledge to create a good one but well worth it. This article is the first of six exploring how you can create a clear and concise Tenant Selection Policy.  Some of the rewards received are the following:

  1. COMPLIANCE with Federal, State, Local and Fair-housing laws.
  2.  EFFICIENCY in corporate management oversight of one property or multiple sites specifically site-managers.
  3. ESTABLISHES BOUNDARIES giving the message to potential tenants – this Management Company has their act together. They have rules and enforce them.
  4. OBJECTIVE DECISIONS are made as to which rental applicants qualify for a rental unit and which ones do not.
  5. TRAINING TOOL for new staff – policies for both rental applicants and staff members are in writing and integrated into the Selection Policy – no guessing.
  6. SALES TOOL – When an apartment owner or landlord are shopping for a “premier” management company, a highly defined and organized Tenant Selection Policy can be impressive.

WHERE TO FIND HELP

It is the law to have and use a clear and concise Tenant Selection Policy – at least it is in Washington State.  I am sure other states require the same.

The Washington State law, Fair Tenant Screening Act of 2012 has been in place for many years now, yet management companies and landlords are having to face Fair-housing complaints, audits and even costly lawsuits due to non-compliance.  Later we will review the law in Washington State but first HOW does a landlord find help establishing a good Tenant Selection Policy?  And how does one stay awake and aware of the ever-changing sometimes oppressive laws?  Trying to accomplish this on your own is enough to make you want to sell your assets and buy apartments in Texas, Idaho or Arizona where the laws are FOR LANDLORDS and business owners.  In the states where the laws are less and less favorable to landlords and more favorable to tenants we need to stay more “on our toes” in understanding Fair-housing, State, Local and Federal laws.  Landlords appear to have more confidence and success in the rental business when they are members of, and active in management/landlord associations.  These associations help keep a landlord updated on laws, offer use of rental forms – such as Tenant Selection Policies, provide education and mentoring and have a most important element – a Political Action Committee.  They hire lobbyists to speak to legislators on behalf of landlords.  These lobbyists fight for landlords’ and they fight hard.  If you hear yourself mumbling under your breath or even shouting from the rooftops because of the burdensome landlord tenant laws and you want to see a change for the better, join an association and support the Political Action Committee and lobbyist!  They are your voice when it comes to laws for or against landlords. Here are a few (but not all) of the associations I personally recommend:

  1. LANDLORDS – Washington Landlord Association, WLA
  2. RESIDENTIAL PROPERTY MANAGERS – National Association of Residential Property Managers, NARPM
  3. MANUFACTURED HOUSING COMMUNITIES – Manufactured Housing Communities of Washington, MHCW. In Oregon it is, Manufactured Housing Communities of Oregon, MHCO
  4. AFFORDABLE HOUSING PROVIDERS – Affordable Housing Management Association, AHMA

HELPING LANDLORDS  – At Orca Information, Inc. we process many background screenings each day.  Before we bring on a new client, we are required to review their paperwork they present to rental applicants.  Gross negligence and even small oversights in proper wording of forms and rental documents can easily cause our clients lawsuits and sometimes those lawsuits could carry over to the screening company.  Orca Information, Inc. therefore has a vested interested in helping our clients with basic laws governing the background screening process. This means much of my time is spent helping landlords improve their Tenant Selection Policy and other forms.  Actually, all tenant screening companies have a responsibility to help their clients with complying with the laws governing the application process.

Clients will also call our office asking questions regarding a challenge they are having with a rental applicant.  Example:  An applicant does not qualify for a rental, how does the rental manager “legally” tell them they are unqualified for the tenancy?  There is a simple answer to this question.  The 1st step to solving this problem is to look at the companies Tenant Selection Policy then examine the applicants background screening report – looking for the reasons they have not qualified.  Where it gets complicated is when the Tenant Selection Policy has not been correctly worded or is vague in description of what qualifies an applicant and what does not.  That’s where I usually come into the scene – to help the client create a strong policy so they can avoid such challenges in the future.

In the next article on a Tenant Selection Policy we will cover the Fair Tenant Screening Act of 2012 and how it defines what is required of you to bring up to date or create a clear and concise Tenant Selection Policy.  Stay Tuned!

Note:  Rebekah Near is not an attorney and is not qualified to give legal advice.  The above information is her opinion based on her work in the Tenant Screening industry.

Hickey and Shephard Cases Reshape Oregon Landlord/Tenant Law

By
Brad Kraus
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Here is a case law update on how the Hickey and Shephard cases decisions have impacted Oregon landlord tenant law.

Here is a case law update on how the Hickey and Shephard cases decisions have impacted Oregon landlord tenant law.

By Bradley S. Kraus
Partner, Warren Allen LLP

Most of the world understands that the law affects much of our everyday lives. Each person is required to drive a certain speed, pay for items they want, and otherwise conform their conduct to a designed set of rules. Each of these rule sets can be found within statutes crafted by legislatures. Landlords are no different, with most of their Oregon rules found within the Oregon Revised Statutes, specifically Chapter 90.

However, some rules and recommended practices are not found explicitly within the above-mentioned statutes. As much as the legislature tries its best to create understandable statutes, they often fall short, which is where the courts step in for interpretation and clarification of the same. Recently, two cases were released by the Oregon appellate courts interpreting various practices and arguments related to landlord/tenant law.

In late June, the Oregon Court of Appeals released their opinion in Shephard Investment Group LLC v. Ormandy, 320 Or App 521 (2022). This case was one I, and many other practitioners, had long been waiting for, as it interpreted the utility-billing-damages provision. For years, tenants’ attorneys had asserted that they were entitled to “stack and multiply” their damages. In other words, if a landlord failed to comply with the disclosure requirements set forth in ORS 90.315 for multiple utilities (e.g., water, sewer, and gas), a tenant would be entitled to three separate claims for one month of rent for each month through the applicable statute of limitations. Landlords obviously disagreed, arguing that the statute’s damages provision only entitles a tenant to one month’s worth of rent or twice the amount of actual damages, whichever is greater, as the statute proscribes.

The Court of Appeals agreed with the landlord’s interpretation. An entire review of the opinion would consume many more pages than this article allows. However, I will say that the tenants’ interpretation of the statute led to absurd results and damages claims in the millions of dollars at times, even for the slightest of missteps. No law should ever be interpreted as punitive as tenants’ attorneys were interpreting this one, and I am happy to see that the court agreed.

Another case, however, released by the Oregon Supreme Court overturned a favorable decision from the Court of Appeals in Hickey v. Scott, 370 Or 97 (2022). This case involves the amounts stated in a non-payment notice under ORS 90.394. In that case, the landlord overstated the amount that was due and owing in their non-payment notice. While the Court of Appeals held for the landlord, the Supreme Court stated as follows:

For the reasons that follow, we conclude that ORS 90.394(3) requires that a notice of termination for nonpayment of rent must specify the correct amount due to cure the default. We further conclude that, when the notice states an incorrect amount that is greater than the amount actually due, the notice is invalid, and any subsequent FED action relying on that notice is likewise invalid and requires dismissal.

While this decision puts more of an onus on the landlord, it should not affect how landlords draft their notices. Non-payment-of-rent notices under ORS 90.394 should only contain full units of rent, with partial payments being a problem. If monies were paid, and those payments apply to a particular month at issue, overstating the amount due and owing could present a fatal defect in the notice. If a landlord is concerned about how those payments apply under the law, it is imperative to consult with an attorney that can assist with application of those payments. This will ensure (a) that a solid notice is served, and (b) that notice is actionable and defensible in any eviction action.

About the author:

Bradley S. Kraus is an attorney 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. You can reach him at [email protected] or at 503-255-8795.
Here is a case law update on how the Hickey and Shephard cases decisions have impacted Oregon landlord tenant law
Bradley Kraus, Portland attorney

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