Category Archives: Landlord Tenant Law

Court Ruling Exposes Oregon Landlords to New Legal Liabilities

A fresh Oregon Court of Appeals opinion stands to expose landlords and property managers to a host of new legal claims, including punitive damages.

The ruling in Jackson vs KA-3 Associates, LLC decided that the landlord tenant act does not cover habitability issues in the common areas of apartment complexes. 331 Or App 574, 577 (2024). So, while landlords are now exempt from liability under the landlord tenant act for conduct pertaining to the common areas of their complexes, they face new heightened liabilities for the same conduct under Oregon’s Unlawful Trade Practices Act. ORS 646.605-656.

Before the Jackson opinion, tenants could not bring claims for unlawful trade practices against landlords because common areas were covered under the landlord tenant act. For instance, the landlord tenant act had historically been ruled to have covered common areas of apartment complexes, like common area garbage dumpsters, common area elevators, and any other areas outside a dwelling unit that were under the control of the landlord. See ORS 90.320(1)(f), (g). And Oregon’s Unlawful Trade Practices Act specifically did not apply to these common areas because they were covered by the landlord tenant act. See ORS 646.605(6)(b)(A).

However, after the Jackson opinion, landlords and property managers now face exposure to new legal liabilities for common area conditions under Oregon’s Unlawful Trade Practices Act, including claims not previously available under the landlord tenant act, such as punitive damages, statutory damages, and one-way attorney fees. See ORS 646.638; Ivie v. Mission Rock Residential LLC, No. 3:21-CV-01122-SB, 2022 WL 2612215, at *9 (D. Or. May 27, 2022) (denying a landlord’s motion to dismiss a tenant’s Unlawful Trade Practices Act claims because the claims were not covered by the landlord tenant act).

People familiar with the Jackson case expect the opinion to be modified on reconsideration or on appeal to the Oregon Supreme Court. But as of now, Jackson is good law, and until it is changed, landlords are now subject to claims for unlawful trade practices pertaining to the common areas of their premises.

The opinion of the Court can be read here: Jackson v KA-3 Associates, 331 Or App 574 (2024).

Written by Michael Fuller, Founder, Underdog Law Office

Courthouse Eviction Defense: What and Why

At 8 a.m. on a given weekday, at the Multnomah County Circuit Courthouse downtown Portland, we pick up a docket with between 30 and 50 tenants slated for a first court appearance in their eviction case. Few know when they walk in that 30-49 other people have the same hearing scheduled for 8:45 am, and any of them could be there until midday. Since January, 51% of Oregon’s eviction cases were filed in Multnomah County; most – 88% – were for nonpayment. Almost all begin and end without the person facing eviction receiving legal advice.[1]

Five days a week, tenants arrive before “first appearance” and find a seat in the Crane Room, an open lobby area with tall windows and ample tables and chairs. They wait to be called into the courtroom, where the judge does roll call through the day’s docket. A look around the Crane Room reveals people facing eviction are not a representative sample of Multnomah County’s population. There are more people of color, more women, and they are generally older.

In the Crane Room, 51% of tenants we helped identified as a Person of Color, compared to 31% in Multnomah overall.[2] Adults over 50 are the fastest growing homeless demographic in the county, are mostly homeless for the first time, and age 3-4X faster than their housed counterparts.[3] That tenants in eviction court reflect the homeless population is not a coincidence; eviction is the leading cause of homelessness.[4]

Members of The Commons Law Center’s Tenant Eviction Defense (TED) team walk around the Crane Room and approach tenants, who are unsure of what they are supposed to do next, asking if they are interested in free legal counsel for the day’s hearing. Usually, they have questions about the service, then are interested in speaking with our attorney. Something clients often say is I’m here because I can’t pay, so there’s nothing I can do to stop eviction. This is not necessarily true, but it shows that tenants know little about their rights and options even after they show up to court, where large television displays scroll through informational slides about new laws and available rental assistance, where rental assistance sits at a nearby table.

Over the intercom, sometime before 9 a.m., anyone present for a landlord-tenant matter is instructed to go to Courtroom A. The courtroom door opens and tenants sit and wait for the judge to roll call the cases. In most cases – 80% – a landlord lawyer or agent approaches the bench to show they are handling the negotiations for the plaintiff.[5] When called as defendants, tenants rise to show they are present and, if a tenant has requested our counsel, our attorney presents themselves on the record. The judge informs all tenants they will have an opportunity to negotiate with their landlord or landlord agent the same day; most tenants want to negotiate.

After roll call, tenants file back into the Crane Room and wait. There are many more tenants than landlord lawyers and agents and most have multiple cases, sometimes a dozen. Tenants who sign up to work with TED have to queue with other tenants who signed up, waiting for our attorney to be available to speak with the tenant and then the landlord’s representative to negotiate. It looks somewhat like a DMV, with people waiting anxiously, needing to get back to their jobs, kids, expiring parking meters. Unlike at the DMV, the stakes are high – tenants we speak to consistently say that they arrived at court scared and hopeless.

One tenant client, “Mary,” met us while crying softly in the courtroom and setting a trial date for her eviction case. She’d lived in her apartment for 14 years, was over 50, and primary caretaker for her sister, 67 years old, who lives with her. Mary did not know where she or her sister would go. They are their only family around and friends did not have space. Now that Mary’s sister is on disability and Mary’s back to working part-time, they could pay the rent but not catch up on the months they fell behind. A rental assistance agency had committed funds to Mary’s housing back in May 2023 but by October 2023 they had not been received. With our help, Mary connected with a different rental assistance agency, the landlord promptly sent the required information, Mary’s back rent was paid and her eviction case dismissed.

During negotiations, a landlord lawyer or agent will typically tell unrepresented tenants, based on the negotiating authority their landlord clients, who are not present, allow, that unless they can pay everything owed in a short amount of time, their choices are to move out or be evicted. For most tenants, paying in full in short order is not possible. Yet, for most tenants, avoiding an eviction and staying housed might both be possible thanks in large part to recent legislation.

Oregon’s HB 2001 (2023)[6] did a lot for low-income tenants evicted for nonpayment, allowing them up until the time of trial to pay the rent due listed on their eviction notice to require the case be dismissed. Multnomah County’s primary rental assistance agency, Bienestar, is also onsite in the Crane Room, accepting referrals and answering questions about individual cases for tenants and their lawyers.

With a modicum of legal advice, options widen for parents trying to keep their kids housed after an illness, injury, or job loss puts them behind on rent. They can set a trial date, which gives them at least two weeks to work with rental assistance and to earn, raise, and otherwise find the back rent they owe. A tenant might need help negotiating a move out, repairs, a behavioral agreement, or other terms with the landlord.

Most importantly, those who receive legal advice know how to avoid having an eviction on their record, a shared goal among TED’s clients. Disruptive displacement—having to move under unfavorable terms—leads to homelessness,[7] negative health outcomes,[8] interference in children’s education,[9] instability in communities,[10] negative impacts on credit scores, and makes it harder to rent again.[11]

Tenant eviction defense prevents disruptive displacement. In a randomized trial in New York City, “Tenants who were represented by attorneys were more than four times more likely to retain possession of their apartments than similar tenants who were not represented.”[12] Representation has drastically reduced disruptive displacement in San Francisco, Seattle, Philadelphia and many other cities.[13] Washington State passed a right to counsel program for tenants in 2021[14] and already 50% of tenants served through the program, whose outcomes are known, remain housed.[15]

Preventing evictions presents huge cost savings for shelters and other social support systems. A cost benefit analysis commissioned by New York City predicted that a program to represent tenants could recoup $3 to $6 for every dollar spent.[16] In fact, it is cheaper, period, to keep people housed than allow them to become homeless.[17]

Eviction also discriminates. In many cities across the U.S., Black tenants, particularly women as heads of Black households, are 2X as likely, or more, to be evicted.[18] In California, Latinx tenants saw similarly disproportionate eviction rates.[19] Recent scholarship argues that summary eviction proceedings are racialized and “one of the most violent acts resulting from a judgment of our civil courts.”[20]

Over six months of 2023, The Commons Law Center’s in-court Tenant Eviction Defense program served 516 tenants over 78 clinics. On clinic days, TED’s attorneys gave brief legal advice and helped negotiate nearly 20% of the matters on the docket. Of the tenants we served, 84% avoided having an eviction on their record, including 56% who kept their housing and 28% who agreed to move out.

Typically, with a team of just 1 lawyer and 1 paralegal or clerk, TED has been able to obtain majority favorable outcomes for about a fifth of Multnomah tenants on the eviction docket. The downstream effects of this simple intervention cannot be overstated.

No tenant should be disruptively displaced because they are unaware of their rights and opportunities, struggling to navigate the legal system under stress, or unable to negotiate on a level playing field with landlord lawyers. Policymakers have an opportunity to positively impact multiple overloaded systems by investing in legal advice for tenants facing eviction.

The National Coalition for a Civil Right to Counsel maintains a list of jurisdictions that have adopted some kind of right to legal counsel for tenants facing eviction.[21] In Oregon, local and state governments are responding. Oregon Housing and Community Services commissioned a report from the Oregon State Bar to explore the landscape of tenant representation, and is working with Oregon State Bar’s Modest Means Program and others to fund legal services for tenants facing eviction. Multnomah County and the City of Portland Housing Bureau have made significant investments.

As a result, Oregon Law Center’s Eviction Defense Project has doubled the number of lawyers practicing tenant law since 2020; Portland Community College’s CLEAR Clinic and Multnomah Public Defender’s Community Law Project have effective, ongoing and growing programs to serve tenants; and Portland State University’s Evicted in Oregon serves as a data clearinghouse. The Commons Law Center is proud to be among this group of committed justice advocates and looks forward to expanding our work to help more families stay housed.

By: Auden Friedman & Amanda Caffall

[1] Evicted in Oregon, By County: Latest Eviction Data. Updated on: November 15, 2023, https://www.evictedinoregon.com/by-county-latest-eviction-data (last visited on December 4, 2023).
[2]  Evicted in Oregon, By County: Latest Eviction Data. Updated on: November 15, 2023, https://www.evictedinoregon.com/by-county-latest-eviction-data (last visited on December 4, 2023).
[3] Sharon Meieran, 50 is the New 70: The rising epidemic of aging and homelessness 5 (2021).
[4] Andrew Scherer, The Case Against Summary Eviction Proceedings: Process as Racism and Oppression, 53 Seton Hall Law Review 18 (2022).
[5] By County: Latest Eviction Data. Updated on: November 15, 2023, https://www.evictedinoregon.com/by-county-latest-eviction-data (last visited on December 4, 2023).
[6] H.B. 2001. § 2021.
[7] Stout Risius Ross, LLC, The Estimated Cost of an Eviction Right to Counsel Outside of New York City 30 (2022).
[8] Ibid., 43.
[9] Ibid., 50.
[10]Ibid., 54.
[11]Ibid., 40.
[12] Stout Risius Ross, LLC, The Estimated Economic Impact of an Eviction Right to Counsel in Detroit 98 (2022).
[13]  Ibid., 97-101.
[14] ​​RCW 59.18.640
[15] Jim Bamberger et al., Report to the Legislature on Implementation of the Appointed Counsel Program for Indigent Tenants in Unlawful Detainer Cases 8 (2022)
[16] Stout Risius Ross, LLC, The Estimated Economic Impact of an Eviction Right to Counsel in Detroit 11,12 (2022).
[17] Ly A, Latimer E, Housing First Impact on Costs and Associated Cost Offsets: A Review of the Literature. 60 Can J Psychiatry 475-87 (Nov. 2015).
[18]Stout Risius Ross, LLC, The Estimated Cost of an Eviction Right to Counsel Outside of New York City 27 (2022).
[19] Stout Risius Ross, LLC, The Estimated Economic Impact of an Eviction Right to Counsel in Detroit 66 (2022).
[20] Andrew Scherer, The Case Against Summary Eviction Proceedings: Process as Racism and Oppression, 53 Seton Hall Law Review 2 (2022).
[21] National Coalition for a Civil Right to Counsel, Current Tally of Tenant Right to Counsel Jurisdictions (2022) http://civilrighttocounsel.org/highlighted_work/organizing_around_right_to_counsel (last visited December 4, 2023)

Additional landlord tenant updates from the 2023 legislative session

The 2023 legislative session was a stormy one, but now that it’s over and the dust has settled a bit, there are two significant changes to Oregon landlord tenant law, in addition to the major restructuring accomplished by HB 2001. The two additional changes in the 2023 session involve an updated cap on rent increases (SB 611), and changes to service methods for notices in residential tenancies (SB 1069).

SB 611, passed on the final day of the session, amends the cap on rent increases in residential tenancies to limit price hikes during high-inflation periods. Previously, Oregon law capped rent increases at 7% plus the annual consumer price index (CPI). Because the CPI in 2022-23 was so high, annual rent increases of up to 14.6% were permitted.

To prevent similar unpredictable increases in future, SB 611 amends ORS 90.323, 90.324, and 90.600 to limit rent increases to the lesser of 7% plus CPI (the current cap) or 10%. In other words, in high-inflation years, the maximum rent increase for residential tenancies is 10%. In years with lower inflation, the maximum increase would be lower. This change adds predictability for landlords and tenants, who now know what the maximum annual rent increase can be and can budget accordingly. SB 611 also limits rent increases to once in any 12-month period.

SB 611 does not change existing provisions exempting from the rent-increase cap residential landlords who rent units that have certificates of occupancy less than 15 years old, or units that are subsidized and the increase either does not increase the tenant’s portion of the rent or is required by the terms of the subsidy program.

SB 611 applies to all notices of rent increase issued on or after the bill’s effective date.

SB 1069, which does not take effect until January 1, 2024, amends ORS 90.155 and related statutes to permit residential landlords and tenants to serve notices by email, if the parties agree to do so by separate written addendum to the rental agreement. SB 1069 also allows landlords to return funds to tenants, including security deposits and rent refunds, by electronic means, if the parties have agreed to such electronic delivery in a written agreement. Significantly, however, notices terminating a tenancy, if served by email, must also be served by first class mail.

By Emily Rena-Dozier

2023 Updates in Tenant Law

Governor Kotek recently signed into law HB 2001 which modifies the rights and obligations of landlords and tenants in Oregon. The bill expands the protections afforded to tenants under the Oregon Residential Landlord Tenant Act (ORLTA).

First, the bill allows for a tenant to pay any past-due rent to a landlord at any time during an eviction case for non-payment of rent in order to dismiss the case. This is basically a redemption right for the tenant. If it is the day before an eviction trial, the tenant can tender past due rent to the landlord and the case will be dismissed. If this happens, the tenant will not be allowed to recover their attorney fees or costs and the landlord can recover its filing fees. Basically, a dismissal after a tenant tenders past-due rent means neither party will be considered the prevailing party for the purpose of attorney fees and costs under ORS 90.225. This gives Oregon tenants extra time, if they fell behind on rent for whatever reason, to get back on track and avoid being saddled with an eviction conviction on their record.

Second, the Bill extends the time periods for the right to cure a past-due rent under ORS 90.394. 90.394 is modified to 10 days or 13 days for the right to cure unpaid rent before an eviction can be filed. Previously, a landlord could issue a 72-hour notice of unpaid rent on the eighth day of the rental period or a 144-hour notice on the fifth day of the rental period. Both are functionally identical in that they require the tenant to cure the unpaid rent by the eleventh day of the rental period. But now, the landlord can give 10 days’ notice on the eighth day of the rental period or 13 days’ notice on the fifth day of the rental period. So, the tenant can cure unpaid rent by the 19th day of the rental period. This gives a tenant who falls behind on rent an additional eight days to pay the rent without the landlord being able to file an eviction case.

Third, the Bill imposes additional inquiry requirements by the court prior to entering a default judgement against a tenant who declined to appear at an eviction hearing first appearance. Previously, if a tenant did not appear at the initial hearing in an eviction case, the landlord was automatically granted a default judgment for possession. No questions asked. But under the new standard, the court is required to make an independent finding that the complaint complies with certain procedural and technical requirements imposed by law. These technical and procedural requirements are frequently some of the most effective defenses a tenant has to eviction, but without a lawyer to identify and explain them, very few tenants would recognize they have such a defense. In addition, the landlord is required to submit an affidavit swearing under oath that the tenant is still in possession of the premises prior to obtaining a default.

Finally, the Bill sets up a system for the court to automatically set aside old eviction convictions. The court is required to annually conduct an internal, independent inquiry as to what eviction judgements have been satisfied and seal those records. Qualifying judgments are those where (1) any money award has expired or been satisfied or discharged, (2) at least five years have passed from the date of judgement or the judgement was by stipulation of the parties and twelve months have passed from the date of judgement. If an eviction is set aside, any prospective tenant when asked the question, “have you ever had an eviction entered against you?” can truthfully and legally answer, “no.” Prior evictions are one of the greatest barriers to low-income tenants procuring secure housing. And most renters are not even aware of the option to expunge an eviction record.

This new Bill demonstrates a continued movement to expand tenant rights in Oregon and address the obvious and drastic imbalance of power between landlords and tenants. The Bill is only one step towards true housing equality, but at least it is in the right direction.

-Kevin Mehrens