Since the start of the COVID-19 pandemic, the State of Oregon and federal agencies have enacted various moratoria on residential and commercial evictions and foreclosures. These include the foreclosure moratorium set forth in Oregon House Bill 4204 (“HB 4204”) as discussed in COVID-19: Oregon House Bill 4204 Changes the Landscape for Foreclosures, as well as the moratorium on residential and commercial evictions set forth in Oregon House Bill 4213 (“HB 4213”) as discussed in Oregon Legislature Extends Eviction Ban Until September 30, 2020, and Adds Six-Month Payment Grace Period. Both the federal and Oregon moratoria have recently been extended.
Extension of State and Federal Foreclosure Moratoria
On August 27, 2020, Fannie Mae extended its existing moratorium on foreclosures and evictions on properties with single-family mortgages backed Fannie Mae from August 31, 2020, to December 31, 2020. The Fannie Mae eviction moratorium, however, applies only to homes owned by Fannie Mae and is inapplicable to tenants in homes that have not been foreclosed. Subsequently, on August 31, 2020, Oregon Governor Kate Brown issued Executive Order 20-37, which extended the mortgage foreclosure moratorium “emergency period” under HB 4204 to December 31, 2020.
Extension of Oregon Residential Eviction Moratorium; CDC Issues Order Prohibiting Certain Residential Evictions
HB 4213 established an “emergency period” beginning April 1, 2020, and ending September 30, 2020. During the emergency period, landlords were prohibited from terminating a lease, assessing late fees, initiating an action to take possession of a premises, or otherwise interfering with the tenant’s possession of a premises because of nonpayment of rent, late charges, utility charges, or other fees. The emergency period expired on September 30, 2020, and commercial landlords may now pursue collection of unpaid rents, subject to strict compliance with the requirements of HB 4213.
However, on September 28, 2020, Governor Brown issued Executive Order 20-56 (“EO-56”), which effectively extended the residential termination and eviction moratorium under HB 4213 through December 31, 2020. Specifically, EO-56 established an “eviction moratorium period” starting on September 30, 2020, and ending on December 31, 2020, which is subject to further extension by executive order. During the eviction moratorium period, residential landlords in Oregon may not, and may not threaten to:
- Deliver a termination notice without cause, or for nonpayment;
- Initiate or continue an eviction action based on a termination notice without cause or for nonpayment;
- Take any action for nonpayment that would interfere with a tenant’s possession or use of a dwelling unit;
- Assess a late fee or any other penalty for nonpayment; or
- Report a tenant’s nonpayment as delinquent to any consumer credit reporting agency.
Further, EO-56 does not relieve a residential tenant of its obligation for rent, utility charges, or other service charges or fees, but does waive late charges and other penalties during the eviction moratorium period. EO-56 does not extend the October 1, 2020 to March 31, 2021 grace period for unpaid rents under HB 4213. During the eviction moratorium period, residential landlords may give notices permitted by Sections 3(4) or 3(7) of HB 4213, but any notice must inform tenants that eviction for nonpayment is not allowed before December 31, 2020.
In addition to EO-56, effective September 4, 2020, and ending December 31, 2020, the Centers for Disease Control and Prevention (“CDC”) has issued an order (the “CDC Order”) under Section 361 of the Public Health Service Act that temporarily halts residential evictions to prevent the further spread of COVID-19.
The CDC Order prohibits landlords from evicting any tenant from any residential property during the effective period of the CDC Order. The CDC Order does not apply, however, in any state, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in the CDC Order. Like HB 4213 and EO-56, the CDC Order does not relieve tenants of the obligation to pay rent. Because EO-56 extends the moratorium on residential lease terminations and evictions to coincide with the expiration of the CDC Order, and because EO-56 does not impose eligibility requirements like the CDC Order, EO-56 protects a larger group of tenants and is at least as restrictive as the CDC Order. Consequently, residential landlords and tenants assessing their rights should look to EO-56 until at least December 31, 2020.
As many businesses in the retail, hospitality and food and beverage sector continue to struggle, the lapse of HB 4213’s commercial termination and eviction moratorium is not likely to signify an imminent landlord-tenant or lender-borrower donnybrook. Rather, as empty commercial space remains difficult to fill and long-term lease commitments remain elusive, landlords, tenants and lenders are likely to pursue negotiated resolutions that balance the near-term interests of all parties. However, extension of state and federal residential eviction and foreclosure moratoria seek to preserve housing and promote health and well-being as we continue to navigate the COVID-19 pandemic.