Tenant Screening – Senate Bill 282, Senate Bill 291, and Best Practices in Screening (Portland Screening Rules)

Sunday, December 12, 2021 3:21 PM | Maria Menguita (Administrator)

By: Tia Politi, ORHA President
December 14, 2022

continued from Part 2 of this article

Portland screening rules
In the city of Portland, city regulations restrict many areas of screening. ORHA has created Portland screening forms that are available on the forms store site.

  1. Unit must be advertised for 72 hours prior to accepting applications – called Notice of Unit Availability. Notice must include:
    1. When apps will be accepted (no sooner than 72 hours from date/time of posting of notice)
    2. Whether or not the unit is ADA accessible as a Type A Unit in accordance with the Oregon Structural Building Code and ICC A117.1, providing accessibility for wheelchair users throughout the unit
    3. Amount of screening charge, if any, and description of screening criteria if you will charge for screening applications
  2. If multiple units are advertised HP may publish the following information in either their Notice of Unit Availability or in a combined notice advising where info on each unit may be viewed. Notice must indicate the following:
    1. Number of units available
    2. Range of bedrooms of available units
    3. Range of sizes of available units
    4. Range of rents for available units
    5. When applications will begin to be received
    6. HP’s screening criteria, if assessing a screening charge
    7. Whether or not any of the units meet Type A definition of wheelchair accessible unit
  3. If HP maintains a Wait List:
    1. HP must publish Waitlist opening at least 72-hours prior to accepting names to add to the list, and include all the above info on number of units that can be filled from the list, range of bedrooms, range of unit sizes, range of rents, when the HP will begin accepting applications for the waitlist, and HP’s screening criteria if assessing a screening charge
    2. HP must keep separate Waitlist for Type A units
  4. Two types of Applicants – Financially Responsible and Non-Financially Responsible:
    1. Financially responsible applicants screened for everything including credit & income
    2. Non-financially responsible applicants screened for everything except credit & income. If non-financially responsible tenant is denied, you must still offer the other renters the unit
  5. Two types of Screening – Low Barrier or Landlord Choice/Individual Assessment
    1. Low Barrier Screening – HP agrees not to reject an applicant based on certain aspects of their criminal, credit or rental histories:
      1. Criminal History: An arrest that did not result in conviction, unless pending on the date of application; participation in or completion of, a diversion or a deferral of judgment program; a conviction that has been judicially dismissed, expunged, voided or invalidated; a conviction for a crime that is no longer illegal in Oregon; a conviction or determination through the juvenile justice system; a misdemeanor conviction with a sentencing date older than three years; or a felony conviction with a sentencing date older than seven years
      2. Credit History: A credit score of at least 500; insufficient credit history; past due collections less than $1000; damage balances owed to prior HP’s of less than $500; discharged bankruptcy; Chapter 13 bankruptcy under active repayment; medical, vocational, or educational training debt
      3. Rental History: Eviction history if case was dismissed or won by the applicant; an eviction judgment more than three years old; an eviction judgment less than three years old if the basis for the action was a no-cause notice, or judgment was issued by default and applicant can provide credible evidence that they had already vacated the unit at the time the notice was served; or a judgment that was subsequently set aside or sealed. HP will only deny for rental history reports that indicate rent defaults; three or more material violations of the rental agreement one year prior to application AND that resulted in notices issued to renter; outstanding balance due to prior HP; termination for cause; or insufficient rental history unless applicant in bad faith withholds rental history information
    2. Landlord Choice/Individual Assessment Screening – You may create and apply your own fairly established criteria, but:
      1. If you deny an applicant and any single criterion is more prohibitive than any of the Low Barrier criteria, you must conduct an Individual Assessment, considering factors such as, the nature and severity of the incidents; the number and type of incidents; the time that has elapsed since the incidents occurred; and, the age of the individual at the time the incidents occurred. When conducting an Individual Assessment, you are required to accept and consider all Supplemental Evidence that an applicant provides with their completed application to explain, justify or negate the relevance of the information
    3. Approval, Conditional Approval, or Denial – You must notify each applicant in writing of your determination within two weeks of completing the evaluation
  6. Applications must include:
    1. A space or form to declare or affirm a Mobility Disability or other Disability status
    2. PHB Statement of Applicant Rights & Responsibilities: https://www.portland.gov/sites/default/files/2020-01/notice-30.01.086.c.3.c-application-and-screening-rights-and-responsibilities.pdf
    3. City Notice to Applicants for requesting a Reasonable Accommodation or Modification: https://www.portland.gov/sites/default/files/2020-01/notice-30.01.086.c.3.b-modification-or-accommodation.pdf
    4. Screening criteria and description of the evaluation process if you charge a fee for screening
    5. A statement that applicants may include Supplemental Evidence for consideration, in order to mitigate potentially negative screening results
    6. Not required but “best practice” to include applicant’s right to appeal denial (ORHA Adverse Action and Denial form contains this information)
    7. If applicant requests, HP must provide record of receipt of application whether or not a screening charge is assessed. (Remember, HPs who assess an applicant screening charge are already required to provide a receipt for the fee)
  7. HP tracks receipt of completed applications and offers unit on a first-come, first-served basis, unless:
    1. Unit is ADA accessible as defined in Oregon Structural Building Code and ICC A117.1, and applicant or family member has physical mobility disability, in which case their application is prioritized ahead of other
    2. If someone submits an application prior to the end of the 72-hour period – 8-hour penalty for date/time of receipt
    3. HP may simultaneously screen applications received, but must accept, conditionally accept or deny in the order received
    1. HP may refuse to accept application, only if:
      1. Applicant has verifiable repeated violations of the rental agreement with the same landlord. Most recent violation must have occurred within the past 365 days from the date the application is submitted, and past landlord must provide copies of the violation notices
      2. Application is incomplete
      3. Applicant fails to provide information to confirm identity or income
      4. Applicant has intentionally withheld or misrepresented required information. (Be careful with this, some applicants may have memory or other cognitive disorders.)
      1. Acceptable forms of ID:
        1. SSN
        2. Valid Permanent Resident Alien Registration Receipt Card
        3. Immigrant Visa
        4. ITIN
        5. Non-immigrant Visa
        6. Any government-issued ID regardless of expiration date
        7. Any ID or combination of ID’s that would permit a reasonable verification of identity
        1. Income requirements
          1. Rent vs income calculations must include all cumulative sources of income for all financially responsible applicants, including non-governmental rent assistance
          2. If the monthly Rent amount is below the amount listed for the number of bedrooms in a Dwelling Unit, a Landlord can require an Applicant to demonstrate a monthly gross income of up to but not greater than 2.5 times the amount of the Rent.
          3. If the monthly rent amount is at or above the amount listed for the number of bedrooms in a Dwelling Unit, a Landlord can require an Applicant to demonstrate a monthly gross income of up to but not greater than 2 times the amount of the Rent.
          4. https://www.portland.gov/sites/default/files/2020-01/table-30.01.086.d.2.a-b.pdf
          5. If an applicant fails to meet the income criteria, you may require an additional security deposit as specified in 30.01.087 A, limited to an additional half-months’ rent or a qualified co-signer
            1. If the tenancy is secured by a guarantor, you can require that individual to prove no more than three months’ rent to qualify.
        2. Application Denial
          1. Low Barrier: You must provide written Notice of Denial, with statement of reasons within two weeks
          2. Landlord Choice/Individual Assessment:
          3. You must provide written Notice of Denial, with statement of reasons within two weeks, and must include an explanation of the reasons that any Supplemental Evidence provided did not adequately compensate for the factors leading to the denial
        3. Appeal of Denial of Application. If a denied applicant appeals their denial and is subsequently approved by the applicant providing documentation that contradicts a screening determination, and the unit is still available, you must offer the unit to that applicant. If the unit vacancy is already filled at the time of the successful appeal, the following rules apply:
          1. Appealed approved app is good for three months
          2. If another similar unit becomes available, HP must contact applicant by email, phone or certified mail to offer the unit with a deadline of 48 hours for applicant to respond and declare their intent to rent the unit
          3. If multiple responses from applicants, order of unit offer is based on the appeal submission dates
          4. If no response, unit may be offered to the public by posting Notice of Unit Availability (ad)
          5. If Appealed Approved Applicant misses the 48-hour deadline, but HP has not yet posted Notice of Unit Availability, HP may enter into rental agreement, but is not required to
          6. If Notice of Unit Availability has already been published, Appealed Approved Applicant are subject to the same process as the general public, with the exception of re-screening unless the application is more than three months old.

        If you own a property in the city of Eugene, you need to be aware that the Renter Protection Committee is working to adopt some of the Portland rules and the city council will be voting on those soon so stay tuned.

        This column offers general suggestions only and is no substitute for professional legal counsel. Please consult an attorney for advice related to your specific situation. Any laws referenced herein are current to the date of publication.

        continue reading Part 2 of this article

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