Oregon SB 278 moves some of the burden from landlords to tenants, and tenants must provide to the landlord documentation verifying they are seeking rental assistance as attorney Brad Kraus explains here.
Bradley S. Kraus
Attorney at Law, Warren Allen LLP
During nearly every month over the past year, executive or legislative discussions or actions were in motion to change Oregon landlord-tenant law in response to the COVID-19 pandemic. Couple these with the multitude of often different local laws enacted during those same months, and how anyone expected everyday landlords to keep up is unclear.
This past month was no different. The Oregon legislature, deciding the tenant protections they just enacted in Senate Bill 282 were not enough, subsequently passed Senate Bill 278.
This new law creates an opportunity for a tenant to put off any non-payment eviction notice, or enforcement action of the same, if one has been served, for 60 days if certain conditions are met. However, unlike previous tenant protections, the burden to invoke these protections is now properly placed within SB 278—on the tenant. Further, SB 278 makes up for some shortcomings in prior laws related to the Landlord Compensation Fund, correcting the same via this subsequent legislative action.
As an overview, Senate Bill 278 does not change the fact that July’s rent is due and owing on time. Senate Bill 278 creates an odd “if/then” framework related to tenant protections, depending on where a landlord is in the eviction process. To invoke the protections provided by SB 278, the tenant must provide to the landlord documentation verifying they are seeking rental assistance. This documentation can be provided through nearly any method to the landlord, including email or text message.
If a landlord receives this verification, then a 60-day stay to the process commences, and further action is either prohibited—or required—of the landlord. For example, if the landlord has not yet served a Non-Payment of Rent notice and documentation consistent with SB 278 is provided, the landlord is prohibited from serving that notice for 60 days. If no rental assistance is received for 60 days covering the amounts due and owing for that period and the preceding 60-day period, the landlord may serve a Non-Payment Notice thereafter, and no further stays may be invoked by the tenant.
If the landlord has served a Non-Payment Notice—or has commenced eviction proceedings—the tenant may still invoke the protections by providing the landlord documentation at any time, including at or before the first appearance. If this occurs, the landlord cannot continue with the eviction if it is filed, and the court must stay the eviction and schedule a new first appearance no earlier than 60 days later. If rental assistance is procured and the landlord receives the rent, the eviction must be dismissed. If rental assistance is not procured, the landlord may continue with the eviction process at the reset date.
The above protections properly place the burden on the tenant—not the landlord—to seek out, and provide verification of, rental-assistance efforts. This is one correction that was desperately needed, as prior versions of COVID-related laws required no proof, documentation, or evidence of economic hardship, and were ripe for abuse. As an appropriate concession for these protections, Senate Bill 278 also corrected compensation issues that were built into HB 4401 and the Landlord Compensation Fund. It retroactively compensates landlords the 20 percent unpaid rent they were forced to waive in conjunction with access to the Landlord Compensation Fund monies.
Far too often throughout the past year, the executive and legislative actions taken during COVID-19 placed burdens on landlords for a situation not of their making.
I spoke to many landlords over that time, and none took issue with assisting those who were actually affected by the pandemic. While it is unfortunate that the legislature enacted this law due to its inability to get rental assistance out the door, SB 278’s protections require the appropriate party to act to invoke the same. Further, it assists with making landlords whole, correcting HB 4401’s rent-waiver requirements.
About the Author:
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.