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New Year, New Laws: Changes to Tenant Screening in Senate Bill 291

By Brad Kraus -December 1, 2021

With the new year fast approaching, Oregon landlords must once again turn their attention to a new law affecting their business practices and tenant screening in Senate Bill 291.

By Bradley S. Kraus
Attorney at Law
Warren Allen, LLP

As this article goes online, we will have entered December, the final month of 2021. While not as tumultuous as 2020, this year proved to be one of highs and lows as the industry dealt with changing rights related to non-payment, slow rental-assistance distribution, and a struggling return to some form of normalcy. With the new year fast approaching, landlords must once again turn their attention to a new law affecting their business practices in Senate Bill 291.

Senate Bill 291, which takes effect on January 1, 2022, changes the screening rules found in the Oregon Residential Landlord and Tenant Act. Many landlords who own property in Portland may be used to some of these changes, as they mirror some of those which Portland put into effect with the FAIR Ordinance. Those changes are now codified at the state level for all of Oregon to follow by SB 291.

Of note, Senate Bill 291 will require additional disclosures from the landlord in order to charge for applicant screening. SB 291 prohibits the landlord from charging a screening charge unless the landlord includes written notice to the applicant of the following:

• A right to appeal a negative determination, if any right to appeal exists;
• Any nondiscrimination policy as required by federal, state or local law plus any non-discrimination policy of the landlord, including that a landlord may not discriminate against an applicant because of the race, color, religion, sex, sexual orientation, national origin, marital status, familial status or source of income of the applicant;

• The amount of rent the landlord will charge and the deposits the landlord will require, subject to change in the rent or deposits by agreement of the landlord and the tenant before entering into a rental agreement; and
• Whether the landlord requires tenants to obtain and maintain renter’s liability insurance and, if so, the amount of insurance required.

The following will require landlords to review their screening criteria and application documents. To the extent necessary, I would encourage landlords to procure new forms in order to stay compliant with these new changes.

Another huge change found within SB 291 is the requirement of individualized assessments related to criminal denials. Landlords must now provide an opportunity for the applicant to submit supplemental evidence to explain, justify or negate the relevance of potentially negative information that may result in a criminal denial. Further, landlords must also conduct an individualized assessment of the applicant, including reviewing any supplemental evidence, before denying an applicant based upon their criminal-screening results. That individualized assessment must consider a number of factors, including:

• The nature and severity of the incidents that would lead to a denial;
• The number and type of incidents;
• The time that has elapsed since the date the incidents occurred; and
• The age of the individual at the time the incidents occurred.

Many Oregon landlords will likely search for guidance on how to properly conduct such an evaluation. Individualized assessments are, by their very nature, individualized to the applicant, and cannot be reduced to a check-box approach or summarized in one article. However, landlords are encouraged to work with their attorneys with respect to criminal denials in order to ensure compliance with laws related to fair housing. Under SB 291, landlords must now provide a written statement of denial within 14 days of the denial, so it is imperative that landlords promptly seek guidance when needed.

Quote from Rental Housing Journal.