Oregon Senate Bill 91(SB91) was passed by the
legislature and signed by the governor in June of this year (2013). The
bill added new provisions and amended some chapters of ORS Chapter 90 - Oregon's
Residential Landlord and Tenant law. It is effective on January 1, 2014.
Section 3 of the bill imposes specific limits on the landlord's use of the
public record for tenant screening purposes. What you don't know may well
hurt you in this case, so here goes:
Section 3(1) states that
landlords may not consider "actions to recover possession" that were
"...dismissed or resulted in a general judgment for the applicant
(prospective resident) before the
applicant submits the application or general judgments against the applicant
entered five or more years prior to submission of the application. This
restriction does not apply "...if the action has not resulted in a dismissal or
general judgment at the time the applicant submits the application" (a pending
Section 3(2) prohibits considerations of records of arrest that did not
result in conviction. However, this restriction "...does not apply if the
arrest has resulted in charges for criminal behavior as described in subsection
(3) that have not been dismissed at the time the applicant submits the
Subsection (3) takes the extraordinary step of
defining the specific categories of offense landlords may consider. They
(a) A drug-related crime;
(b) A person crime;
(c) A sex offense;
(d) A crime involving financial fraud, including identity theft and
(e) Any other crime if the conduct for which the applicant was
convicted or charged is of a nature that would adversely affect:
(A) Property of the landlord or a tenant; or
(B) The health, safety or right to peaceful
enjoyment of the premises of residents, the landlord or the landlord’s
This legislation is a bellwether - a sign of
things to come in the ongoing effort by housing advocates and others to limit
access to, (and use of) the public record for tenant screening purposes.
That said, it essentially codifies what are becoming tenant screening "best
- Deny tenancy only for (unlawful detainer
or UD) judgments (writs of restitution) against the applicant (defendant) -
entered less than five years from the date of the application;
- Use (UD) filings (and dismissed cases) to
inform the verification process - not to deny tenancy;
- Verify rental history - including that
associated with (UD) filings and dismissed cases;
- Deny tenancy only for convictions, active
warrants and cases - not records of arrest;
- Deny tenancy only specific offenses -
those that fall within the categories described above; and
- Avoid a so-called blanket policy - that
would deny tenancy for any or all (even felony) convictions.
Our goal (as landlords) is to identify (and
approve) as many folks as possible - to strike the optimum balance between
occupancy and resident profile. Objectivity is key. Objectively
starts with the facts. Denying tenancy based on filings or dismissed
"actions to recover possession" is to do so without benefit of the facts.
The answer is simple - rental "verifications". Do them! Ask your
screening company to do them or do them yourself. Just do them!
Note that Oregon complicated things a bit with
its 5 year limitation on consideration of "actions to recover possession" -
which stands in contrast to the traditional seven year limitation imposed on
consumer reporting agencies by the FCRA. As landlords, it is best to
exclude anything from our files that we cannot or do not wish to consider.
Your tenant screening company may be able to limit reporting of eviction records
(based on the eviction records search) to those entered less than five years
prior to the date of the application. Unfortunately, judgments will show up on
the credit report for the full seven years. Careful!
The impetus behind this (and similar laws) is
the disparate impact legal theory - the statistical reality is that considering
records of arrest, for example, has a disproportionate impact on some protected
groups. The risk of a Title VIII (housing) discrimination claim based on this
theory is very real, so we are wise to take it seriously. Business
necessity is our defense and reasonableness is the cornerstone of business
necessity. Is it reasonable, for example to consider a 12 year old arrest
record - when the individual has been clean ever since? Probably not.
Is it reasonable to deny tenancy based simply on a UD filing or dismissed cased.
The answer to that lies in whether there is a reasonable alternative - a way to
know with some certainty what occurred and therefore whether it was truly
pertinent to the tenancy. Verifications are that alternative.
Visit Moco Incorporated or
MyScreeningReport.com for more information regarding tenant screening best