Portland City Council voted to amend the Fair Access In Renting Ordinance (FAIR)

Dear Members,

On June 29, 2022, Portland City Council voted to amend the Fair Access In Renting Ordinance (FAIR).  This amendment was the result of a settlement agreement signed by the parties in the Newcomb et al v. City of Portland lawsuit and is currently in effect.

The amendments reflect changes to FAIR as follows:

Applications and Screening. 

The only change to this portion of FAIR relates to the appeal process after an applicant has been screened and denied by a housing provider and then submits an appeal for a unit that is no longer available. In those instances, the law has been changed to require housing providers to prequalify the applicant for rental opportunities in their properties in the City of Portland for the three months following approval of the application reviewed on appeal.

This is a change from the prior version of FAIR that required housing providers to prequalify the applicant for rental opportunities at any of their properties (not just those located in the City of Portland) for the three months following approval of the application reviewed on appeal.

Security Deposits.  

• Elimination of Depreciation Schedule.

One of the largest changes to FAIR is the elimination of the requirement for housing providers to use a depreciation schedule published by the Portland Housing Bureau for the allocation of a value of any item for which a housing provider deducts the cost of repairs or replacements from a security deposit.

Housing providers must still include a “Unit inventory” and “Unit Condition Report” in the rental agreement, itemizing all fixtures, appliances, equipment or personal property that would require compensation from the security deposit to cover the cost of any repairs of replacements. However, the depreciated value is no longer required on those forms.

New examples and definitions of items that should be listed on the Unit Inventory and Unit Condition Report, per the updates to FAIR, are as follows:

1. Fixtures. This includes non-permanently affixed window dressings (curtains, curtain rods and blinds), all carpet and exposed flooring, faucets, sinks, toilets, tubs, cabinetry, installed light fixtures, hooks and rods.
2. Appliances and equipment. This includes refrigerators, microwave ovens, stovetops, ovens, dishwasher and window unit air conditioners.
3. Personal Property. This includes other non-structural elements that would not qualify under (i) and (ii) above, such as furniture, lamps, televisions, artwork, decorative accessories, and movable tools. 

Structural Elements are not required to be listed on the Unit Inventory and Unit Condition Report. The updates to FAIR give additional examples of structural elements to include: subflooring, walls, framing, roofing, plumbing, wiring, heating and permanently affixed air conditioning systems, doors, insulation, chimneys, fireplaces, fire suppression systems, security systems, staircases, decks, windows and casings.

• Repair or Replacement of Flooring Material.

This amendment of FAIR expands the ability of Housing Providers to charge for repairs or replacement of flooring material.  Housing Providers may charge for repair or replacement of the “discrete impacted area” of flooring material in a dwelling unit.  FAIR now defines discrete impacted area as “the general area of the dwelling unit where the repair or replacement is needed, which may include an entire room, closet hallway, stairway or other defined space, but not beyond.” 

Housing Providers are no longer required to calculate the size of the “discrete impacted area” when charging for the cleaning of flooring material and may charge for the cleaning of flooring material as permitted by state law.

• Unit Condition Reports.

The procedures for the required use of Unit Condition Reports have been significantly altered.  The new procedures for Unit Condition reports are as follows:

Step 1. Prior to the commencement date of the rental agreement, the Housing Provider will make reasonable efforts to schedule a time that is convenient for both the Housing Provider and the Renter to complete a walkthrough of the dwelling unit to complete a report noting the condition of all fixtures, appliances, equipment and personal property listed on the Unit Condition Report. 

Any damage must be noted and both parties must sign the Unit Condition Report.  Housing Providers must take photos of everything noted in the Unit Condition report and share those photographs with the Renter.  This should include a “Unit Condition Report Addendum” for use as described in Step 3. 

Step 2. Should the parties be unable to schedule a mutually convenient time to walk through the unit to complete the Unit Condition Report, the Housing Provider must have the Unit Condition Report completed, along with photos of the items noted in the Unit Condition Report, and share those with the Renter on the commencement date of the rental agreement.  This should include a “Unit Condition Report Addendum” for use as described in Step 3. 

Step 3. Within 7 days of the commencement date, the Renter may complete and submit to the Housing Provider a Unit Condition Report Addendum if the renter notes damages to any fixtures, appliances, equipment and personal property not previously noted in the Unit Condition Report.  If this does not occur, then the Housing Provider’s Condition Report becomes final.

Step 4. If a Renter provides a timely Unit Condition Report Addendum, the Housing Provider has 7 days to dispute the Unit Condition Report Addendum in writing.  If the Housing Provider fails to dispute the Unit Condition Report Addendum within 7 days, the Unit Condition Report Addendum shall establish the baseline condition of the dwelling unit for purposes of deductions from the security deposit as of the termination date of the rental agreement.

If the Housing Provider timely disputes the Unit Condition Report Addendum and the parties are unable to resolve their differences regarding the condition of the dwelling unit, the Housing Provider must retain the Unit Condition Report and Unit Condition Report Addendum and the parties may take their dispute to any court of competent jurisdiction.

• Changes to the Unit Condition Report.

Housing Providers are still required to update the Condition Report (either on the form or by using a Maintenance Work Order History form) and provide that document to the Renter within 15 business days of repair or replacement of any item listed on the Unit Condition Report. 

As a reminder, updated Condition Reports or Maintenance Work Order History Forms must describe:

1. The repair or replacement date(s):
2. The damage being repaired or replaced; and
3. Any funds applied from the security deposit for repair or replacements of the items described on the Unit Condition Report (but information regarding the depreciated value of those items is no longer required).

If a Renter disputes the updated Condition Report or Maintenance Work Order History Form, the Renter must update and submit those updates to the Housing Provider within 7 days of receipt. 

Damages for Violation of FAIR.

Penalties to Housing Providers for failure to comply with the security deposit requirements of FAIR have been reduced from double the security deposit to an amount up to $250 per violation (plus actual damages, reasonable attorney fees and costs).

This article is not intended as legal advice. Please obtain advice of an attorney for any policy changes or decisions regarding residential and commercial Landlord-Tenant matters.