Oregon state law allows a landlord to ask potential applicants about their credit history, eviction records, criminal records, employment, landlord references, number of occupants, and pets. A well-written rental application should ask applicants to provide information in each of these areas.
The application should also include a clause stating that the applicant vouches for the truthfulness of all information provided, that the landlord is substantially relying on the information provided, and that intentionally providing false information will be grounds for eviction, as allowed by law. The Oregon Residential Landlord and Tenant Act (“Act”) specifically allows a landlord to evict a tenant on 24 hours’ written notice if the tenant intentionally provided substantially false information on an application for tenancy within the past year, the false information was with regard to a criminal conviction that would have been material to the landlord’s acceptance of the application, and the landlord terminates the rental agreement within 30 days after discovering the falsity of the information.
Federal, state and some local laws prohibit discrimination in rental housing. The Federal Fair Housing Act prohibits discrimination based upon race, color, national origin, religion, sex, familial status, and disability. State fair housing statutes protect against discrimination based upon race, color, sex, marital status, source of income (excluding Section 8), familial status, religion, national origin, and disability. Some local ordinances (e.g., Portland and Eugene) protect against discrimination based upon age and sexual orientation.
Landlords should avoid asking any questions on rental applications related to these prohibited areas. The sole exception may be the age of a potential applicant if the rental housing qualifies as a “55 or older” facility under the Federal Fair Housing Act. The qualifications for
“55 or older” housing are very strict and you should always check with your attorney before asking age-related questions on your rental application.
Number of Occupants
While you are certainly entitled to ask on your rental application who will be occupying the rental unit, care should be exercised in framing the question. Under Oregon law, a landlord may adopt an occupancy guideline as long as the guideline is not more restrictive than two people per bedroom and is otherwise “reasonable.” Reasonableness is determined on a case-by-case basis and may include consideration of the size of the bedrooms, the overall size of the dwelling unit, and any discriminatory impact the occupancy limit may have. Even though state law allows reasonable occupancy limits, there is no guarantee that federal HUD investigators would defer to state law. While HUD may take Oregon law into consideration when evaluating a discrimination complaint, it is not bound by state law.
The bottom line is that occupancy limits are a risky proposition. Seek an attorney’s advice before setting occupancy limits or asking related questions on your rental application.
Landlords may require payment of an application charge to cover the costs of obtaining a credit report or tenant screening report. The amount of the charge cannot be greater than the landlord’s average actual cost of screening applicants. In any case, the charge cannot be more than the customary amount charged by credit reporting services or tenant screening services. The landlord must provide the applicant with a receipt for any screening charge. A landlord may not require payment of an applicant screening charge unless, prior to accepting the payment, the landlord adopts written screening or admission criteria. The criteria must give written notice to the applicant of: (1) the amount of the applicant screening charge; (2) the landlord’s screening or admission criteria; (3) the process that the landlord typically will follow in screening the applicant, including whether the landlord uses a tenant screening company, credit reports, public records or criminal records or contacts employers, landlords or other references; and (4) the applicant’s rights to dispute the accuracy of any information provided to the landlord by a screening company or credit reporting agency.
Before accepting payment of any screening charge, the landlord must also give actual notice to the applicant of an estimate, made to the best of the landlord’s ability at that time, of the approximate number of rental units of the type, and in the area, sought by the applicant that are, or within a reasonable future time will be, available to rent from that landlord. The estimate must include the approximate number of applications previously accepted and remaining under consideration for those units. A landlord must make this estimate in good faith, and cannot be held liable for errors made in good faith.
Denying An Application
Under state law, the landlord must provide a written statement of the reasons for denying a tenancy application. If the tenant’s application is denied on the basis of a credit report, the landlord must also inform the tenant of that fact and provide written notice of the name and address of the screening service or credit reporting agency that provided the report. The landlord may, but is not required to, give the applicant a copy of his or her credit report.
Fair Credit Reporting Act
Landlords must adhere to the federal Fair Credit Reporting Act. Under this law, the landlord must have the applicant’s written consent to obtain a credit report. If an application is denied based on a credit report, the landlord must notify the applicant of the following: (1) the name, address and telephone number of the credit reporting agency that provided the report; (2) a statement that the credit reporting agency did not make the adverse decision and is not able to explain why the decision was made; (3) a statement setting forth the applicant’s right to obtain a free disclosure of the applicant’s file from the credit reporting agency if requested within 60 days; and, (4) a statement setting forth the applicant’s right to dispute directly with the credit reporting agency the accuracy or completeness of any information provided.