Landlord Guidance Under Portland’s Additional Renter Protections

Posted on by Phil Querin

Discussion: The Portland Ordinance, 30.01.085 (“Portland Renter Additional Protections”) here, now in effect, has identified the occurrence of certain events that, if triggered, would require landlords to pay Relocation Assistance (“RA”) to tenants. [References below to the “Ordinance” will refer to 30.01.085; references to the Oregon Residential Landlord-Tenant Act, ORS Chapter 90, will be referred to as the “Act”; and references to the new state law governing rent increases, will be referred to as “SB 680” here.] 

Apparently, there is some thought that this Ordinance is “preempted” by SB 608. That is not my opinion. I say this because the Portland Ordinance is more restrictive to landlords than SB 608. 

Although I have not conducted any serious research on the subject, SB 608’s rent cap is 7.00% plus the September-to-September average change in CPI for All Urban Consumers. Today that would mean rent increases under SB 608 cannot exceed 10.4%. Portland’s Ordinance limits rent increases to under 10%, without triggering a relocaton assistance charge of several thousands of dollars. If the Portland Ordinance had a rent increase formula resulting in a higher cap than SB 608 (meaning it was more favorable to landlords, i.e. less restrictive than the state law), I would say it was preempted. That is not the case under the present laws. But the content on this website is NOT legal advice. Readers should secure an independant legal opinion from their own attorney or self-proclaimed expert. ~PCQ

The Ordinance applies to all rented Dwelling Units within Portland’s city limits, whether they are managed by an owner, a sublessor, or property management company.  However, not all properties that list Portland as their mailing address are located within the city limits.

Portland Maps” is the official city site used to determine properties subject to the RA policy. See, https://www.portlandmaps.com/. To verify the location of a rental property, click on the Portland Maps link and enter the property address. Once it appears, there are related several links, one of which is “Jurisdiction”. If the Jurisdiction link states “Portland,” the rental property is subject to the mandatory RA policy, unless otherwise exempted, as discussed below.

EVENTS TRIGGERING RELOCATION ASSISTANCE

  1. No-Cause Eviction
    1. Landlord must pay Relocation Assistance (“RA”) to Tenant at least 45 days before termination of the tenancy
  2. Increase of 10% or more in Rent or “Associated Housing Costs”[1]
    1. Tenant must give written notification to Landlord requesting RA within 45 days of Rent Increase Notice
      1. Landlord must pay RA within 31 days of Tenant’s request for RA
    2. Substantial Change of Lease Terms
      1. Tenant must give written notification to Landlord requesting RA within 45 days of substantial change
        1. Landlord must pay RA within 31 days of Tenant’s request for RA
      2. Non-Renewal of Lease
        1. Landlord must pay RA to Tenant at least 45 days before termination of the tenancy

Note:  With the exception of No. 2 (Rent increases of 10% or more) and No. 3 (Substantial Change of Lease Terms) the two remaining events do not require the tenant to make a written request for RA. Payment is simply expected to occur within the required time from the triggering event.

 AMOUNT OF RELOCATION ASSISTANCE

  1. $2,900 for a studio or single room occupancy (“SRO”) Dwelling Unit
  2. $3,300 for a one-bedroom Dwelling Unit
  3. $4,200 for a two-bedroom Dwelling Unit
  4. $4,500 for a three-bedroom or larger Dwelling Unit.

Note:  If a Landlord is paying RA required under the Act, and Relocation Assistance is also required by the Ordinance for the same Termination Notice, the Relocation Assistance required by the Ordinance may be reduced by the relocation assistance required by the Act if both payments are paid at the same time and as a single payment. [2]

TENANT’S RECEIPT OF RELOCATION ASSISTANCE AFTER RENT INCREASE OF 10% OR MORE

  1. Following receipt of the RA, the tenant has 6 months from the date of the increase to either:
    1. Pay it back, and thereafter become obligated to pay the increased rent in accordance with notice of increase; or
    2. Provide the landlord with a notice to terminate the rental agreement in accordance with the Act.
  2. In the event the tenant fails to pay the RA back to the landlord or provided the landlord with the termination notice on or before the expiration of the six-month relocation period, the tenant will be in violation of the ordinance.

Note: A violation of any law or ordinance is also breach under most well-drafted rental agreements or leases, for which landlord may issue a curable notice of default. Accordingly, it appears this would be one method of commencing recovery of the RA should the tenant fail to terminate and repay the RA. The other would be to file a claim in the county Small Claims Court.

Note: The other three triggering events for RA assume the tenancy is terminated, so tenant has no option to accept or reject the landlord’s action – therefore no repayment issue. However, in the event of a substantial change in the lease terms, it would seem possible that the landlord and tenant might  reach agreement to continue the lease under the amended terms, in which case, the tenant would be required to return the RA, just the same as a rent increase of 10% or more.

EXEMPTIONS FROM PAYING RELOCATION ASSISTANCE

Relocation Assistance does not apply to the following, so long as the Landlord has submitted a required exemption application form to Portland Housing Bureau for which it has issued an exemption acknowledgement letter, a copy of which the Landlord must be provided to the Tenant:

  1. Rental agreement for week-to-week tenancies;
  2. Tenants that occupy the same dwelling unit[3] as the landlord;
  3. Tenants that occupy one dwelling unit in a Duplex where the Landlord’s principal residence is the second Dwelling Unit in the same Duplex;
  4. Tenants that occupy an Accessory Dwelling Unit that is subject to the Act in the City of Portland so long as the owner of the Accessory Dwelling Unit lives on the site;
  5. A Landlord who temporarily rents out their principal residence during an absence of not more than 3 years;
  6. A Landlord who temporarily rents out their principal residence during the Landlord’s absence due to active duty military service;
  7. A Dwelling Unit where the Landlord is terminating the Rental Agreement in order for an Immediate Family member[4] to occupy the Dwelling Unit;
  8. A Dwelling Unit regulated or certified as affordable housing by federal, state or local government is exempt from paying Relocation Assistance for a Rent increase of 10 percent or more within a rolling 12-month period:
          a. so long as such increase does not increase a Tenant’s portion of the Rent payment by 10 percent or more within a rolling 12-month period; or
          b. in Lease Agreements where the Rent or eligibility is periodically calculated based on the Tenant’s income or other program eligibility requirements and a Rent increase is necessary due to program eligibility requirements or a change in the Tenant’s income.
    Note: This exemption does not apply to private market-rate Dwelling Units with a Tenant who is the recipient of a federal, state, or local government voucher;
    Note: This exemption applies to Rent Increases and does not apply to Termination Notices.
  9. A Dwelling Unit subject to the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; 
  10. A Dwelling Unit rendered immediately uninhabitable not due to the action or inaction of a Landlord or Tenant;
  11. A Dwelling Unit rented for less than 6 months with appropriate verification of the submission of a demolition permit prior to the Tenant renting the unit;
  12. A Dwelling Unit where the Landlord has provided a Fixed Term Tenancy and notified the Tenant prior to occupancy, of the Landlords intent to sell or permanently convert the Dwelling Unit to a use other than as a Dwelling Unit subject to the Act.

Note: Remember that before being entitled to an exemption, the landlord needs to provide a copy of the Portland Housing Bureau’s acknowledgment letter to the Tenant.

LANDLORD DUTIES FOLLOWING PAYMENT OF RELOCATION ASSISTANCE

  1. Landlord must include a Notice of Tenant’s Rights and Obligations (the “Notice”) and the eligible amount of Relocation Assistance with issuance of the following:
    1. Termination Notice;
    2. Any Rent Increase Notice;
    3. Relocation Assistance payment.
  2.  Landlord must notify the Portland Housing Bureau of all payments to tenants of Relocation Assistance within 30 days of making such payments.

ADDITIONAL LANDLORD LIABILITY FOR VIOLATION OF ORDINANCE

  1. Any Tenant claiming to be aggrieved by a Landlord’s noncompliance with the above regulations in the Ordinance, “has a cause of action in any court of competent jurisdiction for Damages and such other remedies as may be appropriate.”
  2. Damages include the following:
  3. An amount up to 3 times the monthly Rent;
  4. Actual damages;
  5. Relocation Assistance; and
  6. Reasonable attorney fees and costs.

________________________________

[1]   “Associated Housing Costs.” include, but are not limited to, fees or utility or service charges, means the compensation or fees paid or charged, usually periodically, for the use of any property, land, buildings, or equipment. For purposes of Portland’s rent increase ordinances, housing costs include the basic rent charge and any periodic or monthly fees for other services paid to the Landlord by the Tenant, but do not include utility charges that are based on usage and that the Tenant has agreed in the Rental Agreement to pay, unless the obligation to pay those charges is itself a change in the terms of the Rental Agreement.

[See, https://www.portlandoregon.gov/citycode/28481#cid_708924]

[2] Note: Charges to a landlord for exceeding the Oregon rent cap laws, or for other violations under the recently enacted SB 608, are not identified as “relocation assistance”. That law provides at Section 1: “(9)(a) If a landlord terminates a tenancy in violation of subsection (3)(c)(B), (4)(c), (5), (6) or (7) of this section: (A) The landlord shall be liable to the tenant in an amount equal to three months’ rent in addition to actual damages sustained by the tenant as a result of the tenancy termination; and (B) The tenant has a defense to an action for possession by the landlord. (b) A tenant is entitled to recovery under paragraph (a) of this subsection if the tenant commences an action asserting the claim within one year after the tenant knew or should have known that the landlord terminated the tenancy in violation of this section.”

[3] Under Portland City Code 33.910 a “Dwelling Unit” is a building, or a portion of a building, that has independent living facilities including provisions for sleeping, cooking, and sanitation, and that is designed for residential occupancy by a group of people. Kitchen facilities for cooking are described in Section 29.30.160 of Title 29, Property and Maintenance Regulations. Buildings with more than one set of cooking facilities are considered to contain multiple dwelling units unless the additional cooking facilities are clearly accessory, such as an outdoor grill.

[4] Per the City’s Administrative Rules, the term “Immediate Family” means “… parent, foster parent, step-parent, parent in law, sibling, foster sibling, step sibling, sibling in law, grandparent, grandparent in law, child, step child, foster child, grandchild, aunt, uncle, niece, or nephew. An Immediate Family member cannot be an Owner of the Dwelling Unit, their spouse, or their domestic partner. The Immediate Family member must have reached the age of majority (18) or be a legally recognized emancipated minor.”

 

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