Bradley S. Kraus
Attorney at Law, Warren Allen, LLP
There is an old saying often uttered by attorneys: “Bad facts make bad law.” If COVID-19 has taught landlords anything, it can be summarized by playing off that phrase; as in, “bad laws make for bad situations for everyone.”
When I use the phrase “bad laws,” it is not to suggest that things like the current eviction moratoria do not serve a purpose. The problem with such laws/moratoria is that they are crafted by lawmakers who fail to see—or understand—the entirety of the picture. When that occurs, there are unintended consequences, two of which come to mind.
1. Fiscal Issues Related to COVID-19 Moratoria
Landlords are no doubt keeping watch on cries for rent waivers and rent strikes. As I stated in a previous article, such a concept would quickly be challenged, assuming adequate reciprocal protections for landlords were not in place.
Rent strikes have no legal basis and would send harmful ripple effects through our society beyond the scope of this article.
Many landlords have asked me about how they should approach the continual build-up of past-due balances related to rent and utilities.
As to rent, it is important to note that rent remains due under every moratoria in place as of this writing, meaning you will not waive your ability to collect the unpaid rent, even if you don’t communicate with your tenants regarding the same.
As to other amounts, waiver could become an issue, should you potentially trigger the waiver statute. If you are concerned about waiver as to these amounts, speak to your attorney regarding a waiver-prevention notice under ORS 90.412. This will allow you to (a) preserve your ability to act on the debt down the road, and (b) allow you to accept rent without fear of waiving those amounts.
Finally, it is important for landlords to understand the benefits of individualized advice and forms in these odd times. Many landlords with properties in other states may seek to use a “one-size-fits-all” form for issues regarding their Oregon properties.
While some may work, others may contain legally inaccurate language. I have noticed a rise in tenants’ attorneys attacking these forms in various ways and threatening legal action. Such problems can be avoided with up-to-date advice.
2. Conduct Issues during COVID-19
One of the bigger unintended consequences of the COVID-19 court shutdowns is the inability to deal with bad tenants.
Contrary to misconceptions held by some lawmakers, bad tenants are not just a landlord problem. Bad tenants make life miserable for other tenants, who want nothing more then to live peacefully.
At this juncture, with courts setting cases out to June, even if a landlord were to serve a termination notice upon a bad tenant and file an eviction action based upon the same, that bad tenant will likely receive weeks to continue to make life miserable for other tenants and the landlord.
What should a landlord do in that situation?
- First, do not let the current court closures prevent you from taking actions to protect other tenants. This includes service of notices of termination as allowed by law. While tenants and landlords affected by COVID-19 deserve protections, bad tenants should not reap the benefits of the same.
- Second, keep in mind that your other tenants may seek to point the finger at you if you sit on your hands and allow bad tenants to run rampant. While the inability to get into court due to moratoria likely presents a landlord a solid defense, exercising what rights you currently have—and/or contacting the proper authorities where needed—will hopefully keep the victim tenants happy and cause them to direct their anger to the appropriate party.
Final Thoughts On Unintended Issues Of Covid-19
COVID-19 is fundamentally changing every aspect of our society.
While I believe landlords are taking more than their fair share of the problems that stem from COVID-19, the current holding pattern in which we find ourselves will pass in time. Staying on top of your books and holding problem tenants accountable to the extent you are able will set you up for success when we resume our new normal.
About the author:
Brad 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. A native of New Ulm, Minnesota, he continues to root for Minnesota sports teams in his free time. He is an avid sports fan, enjoys exercise, spending time friends and his fiancée, Vicky. You can reach Mr. Kraus via email at firstname.lastname@example.org, or by phone at 503-255-8795.