On January 1, 2014, Oregon SB 91 becomes effective. In addition to recodifying a pre-exsiting usage limitation on certain kinds of unlawful detainer information (in the language of the bill, an “action to recover”), the bill limits the use of criminal arrest and conviction information in tenant screening in certain circumstances. The relevant portions of that legislation state:

SECTION 3.

  1. When evaluating an applicant, a landlord may not consider an action to recover possession pursuant to ORS 105.105 to 105.168 if the action:
    1. Was dismissed or resulted in a general judgment for the applicant before the applicant submits the application. This paragraph does not apply if the action has not resulted in a dismissal or general judgment at the time the applicant submits the application.
    2. Resulted in a general judgment against the applicant that was entered five or more years before the applicant submits the application.
  2. When evaluating the applicant, a landlord may not consider a previous arrest of the applicant if the arrest did not result in a conviction. This subsection does not apply if the arrest has resulted in charges for criminal behavior as described in subsection (3) of this section that have not been dismissed at the time the applicant submits the application.
  3. When evaluating the applicant, the landlord may consider criminal conviction and charging history if the conviction or pending charge is for conduct that is:
    1. A drug-related crime;
    2. A person crime;
    3. A sex offense;
    4. A crime involving financial fraud, including identity theft and forgery; or
    5. Any other crime if the conduct for which the applicant was convicted or charged is of a nature that would adversely affects:
      1. Property of the landlord or a tenant; or
      2.  The health, safety or right to peaceful enjoyment of the premises of residents, the landlord or the landlord’s agent.

Oregon has a landlord tenant coalition (The General Residential Landlord and Tenant Coalition), which negotiated the provisions of this bill. The group formed in 1983, when the landlords and tenants in that state decided that they would each get more by working together, rather than fighting every session and getting nothing. They have put forward a housing bill every year, and SB 91 was that bill for 2013.

The limitations on the use of eviction information came from another part of the Oregon statutes dealing with employment discrimination. All the bill supposedly did was move it into the landlord/tenant section. The provision on detainers was therefore considered to be non-controversial and unopposed by the landlord community or others in the state, as they were already living with it.

The criminal records provision was a trade-off between Oregon’s legal aid community and multifamily landlords. Multifamily Northwest, which represents the large apartment building owners, endorsed all parts of the bill including the new criminal records requirement. For them, what they received in the portions of the bill that permitted them to evict tenants for not having renters insurance outweighed concerns over the criminal records amendment, especially as amended in its final form. They portrayed the criminal records provision as a compromise and “thoughtful, balanced option” and believed that landlords could use the standard in the bill. They stated that they viewed the criminal records provision as part of a national trend, and mentioned jurisdictions that had created a protected class for criminals. They would rather see this provision now than a disaster later.

It should be noted that small landlords opposed the provision, and did a credible job doing it. An association representing small landlords (10 units or less), as well as a screening company, opposed any limitation on conviction records, and covered the potential waterfront quite well, explaining potential legal and practical problems for small landlords under the legislation. They did not carry the day.

Stephen White
Steve is the co-founder and CEO of Fidelis Screening Solutions which provides resident screening and pre-employment screening to businesses and municipalities. Outside of the office, he can be found enjoying the outdoors and coaching his son's ice hockey team.
Stephen White
Stephen White