Fair Access in Renting (FAIR) Ordinance: New Interim Administrative Rules
Fair Access in Renting (FAIR) Ordinance: New Interim Administrative Rules
On July 29, 2020 the City of Portland released new interim Administrative Rules, effective immediately upon release. The purpose of the interim Administrative Rules is to provide additional guidance and clarity as to the intent of the code and rule language. The guidance below impacts how Landlords manage applications and screening and security deposits under the FAIR Ordinance, and are to be read in addition to the linked FAIR Ordinance Code Changes enacted by City Council on July 22, 2020. The Forms Committee has already directed the necessary changes to the Multifamily NW Forms Collection.
Multifamily NW has scheduled additional training opportunities covering the recent code and admin rule changes to Portland's FAIR Ordinances. Scroll to the end for dates and registration links.
Applications and Screening
Clarification was provided in the following areas:
- Notice Requirements. When advertising, Landlords are required to make disclosures about accessible dwelling units, the date applications will be accepted, screening criteria and, in cases of advertising for multiple units, additional information about such things as number of units available, size of units and pricing. This rule was further expanded to state that all published advertising must have the above disclosures, including but not limited to: outdoor signage such as sandwich boards or banners, fliers, printed materials, audio recordings, video media or online platforms. This information can be provided directly, or by providing an address, website address, internet link or other method of communicating to prospective Tenants.
- Publishing Notices. If a Landlord publishes multiple notices at different times or though different methods for the same availability of the same dwelling unit, the open application period (when Landlord may begin
“accepting” applications) must be at least 72 hours after the initial notice.
Changes in Availability of Unit
During the application process, in the event a unit is no longer available due to a vacancy being filled or because a Landlord no longer wishes to rent the unit, the following apply:
- Landlords may refuse to process applications because a unit is no longer available. When this occurs, Landlords are not required to provide written communication to Applicants accepting, conditionally accepting or denying the Applicant, perform an individual assessment, or grant an appeal to Applicant.
- If the unit is no longer available but an Applicant has been screened or their application has otherwise been processed, Landlords must provide written communication of a denial but not perform an individual assessment or grant an appeal to Applicant.
Optional changes to Application Language
Landlords may, at their discretion, include the following items in applications. Inquiries as to whether an Applicant is a current resident or has been a resident of Landlord in the last 365 days (applicable to owners of multiple properties in the City of Portland). Landlords may refuse to process the application of an Applicant who has “repeated and verifiable” violations of rental agreement within 365 days of the application submission date.
“Repeated and verifiable” means:
- At least 3 violations have occurred within a 1 year period, and the most recent violation occurred within 365 days before the Applicant’s submission date;
- The Tenant received notice of each of the 3 violations in writing at the time each violation occurred.
None of the 3 violations was dismissed, cured or resulted in a general judgment for the Applicant before the Applicant submitted the application; and
- The Landlord provides the Applicant with copies of the notices referenced above.
The Ordinance has been amended to remove the word “dismissed” underlined above (as violations can’t be “dismissed”) and explaining that the word “cure” underlined above is defined in ORS 90.392. Specifically, for-cause notices for material violation of the rental agreement giving 30 days to vacate (but 14 days to cure the violations) cannot be used as the basis to deny applications if the for-cause notice was “cured” per the notice.
Disability-Related, Reasonable Modification Requests
- If an Applicant requests a reasonable modification of the property that is denied by a Landlord, the Applicant must first be provided two successive 24 hour periods to request alternative modifications before the denial is finalized. If no reasonable modification can be made, the Applicant, if otherwise eligible, can accept the dwelling unit without the modification.
- The Interim Rule clarifies that the 24 hour period begins to run for each of the two successive periods when a Landlord sends a notice to the Applicant denying the request for modification.
Approval of Applications Reviewed on Appeal
Applicants have 30 days to appeal denied applications during which time they may correct, refute, or explain negative information forming the basis for the denial. The interim rule addresses how to handle Applicants with appeals that have been granted, but that the unit applied for is no longer available.
- Applicants must be prequalified for any rental opportunities at Landlord’s properties at the same or lower rental rate for three months following the approval date.
- Applicants cannot be subject to additional screening and Landlords must waive all screening fees for three months following the approved appeal. Applicants under these circumstances may be required to certify in writing that no conditions have materially changed from those described in the Landlord’s approved application.
- If a Landlord has prequalified Applicants through the appeal process, the Landlord must notify those Applicants of any available units for which they are prequalified before offering the units to the general public.
- The Landlord must issue the notification to the prequalified Applicant by email, phone or certified mail, as provided on the application or subsequently updated by the Applicant.
- Prequalified Applicants must be given at least 48 hours after delivery of the notification by email or phone, or receipt of the notice by mail to respond and declare intent to enter into a rental agreement before a Landlord can offer the unit to the general public. Notifications must include the date and time the Landlord must receive the response and declaration of intent from Applicants. If there are multiple Prequalified Applicants, the offers must be made in order of appeal submission dates. Landlords are not required to rent to Prequalified Applicants responding after the deadline.
- Once notices of dwelling unit availability are published, Prequalified Applicants must submit an application and are subject to the general application process as set forth in the Ordinance, but will not be subject to screening fees or additional screening.
Security Deposits - Clarification was Provided in the Following Areas
Definition of “Termination Date”
- Within one week following the termination date, the Landlord must do a walk-through “Final Inspection” of the dwelling unit at the Tenant’s option, to document wear and tear. The Tenant does not need to be present but must be given at least 24 hours’ advance written notice of the Final Inspection.
- “Termination Date” has now been defined as the date the tenancy terminates and Landlord takes possession of the unit.
- Landlords must provide Tenants with the Condition Report on the first day that the Tenants may take possession of the unit (first day of the lease). Tenants have 7 days to complete the form noting any damage.
- Unless Landlord disputes what is noted on the Condition Report and the Tenant and the Landlord jointly obtain third party validation of the condition of the dwelling unit, the Tenant’s description on the Condition Report is the baseline to be used for any future deductions from the security deposit. "Third party” must be neutral, not a friend or family member of Landlord or Tenant.
Tenants are now required to participate in the validation process in good faith, but the Interim Rules do not specify any consequences for the Tenant for failure to do so.
This update is not intended as legal advice. Please obtain advice of an attorney for any policy change or decisions regarding residential and commercial landlord-tenant matters.