Need to Know!

Oregon Residential Landlord-Tenant Law - Limits Use of Public Records

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:

Eviction Records

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 case).

Criminal Records

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 application".

Subsection (3) takes the extraordinary step of defining the specific categories of offense landlords may consider.  They include:

(a)  A  drug-related  crime;
(b)  A  person  crime;
(c)  A  sex  offense;
(d)  A crime involving financial fraud, including identity theft and forgery; or
(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 agent.

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 practices".

Best Practices

  • 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.

Conclusion

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 practices.


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# re: Oregon Residential Landlord-Tenant Law - Limits Use of Public Records

Gravatar I like your comment and the information provided therein, but I must say that 5 years is alot. i

I worked for a company that did this very same transaction you speak of but, they offered 3 year or more no issues still considerable. Worked out well majority of the time.
11/24/2013 1:23 AM | alexandria

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