Legal Question in Landlord & Tenant Law in Oregon

Re: issueing a 72 hour notice in Oregon

By "open balance" I take it to mean that the tenant paid you $460 in February, however he still owes you a balance of $290 for February rent. Now he owes another $750 for March rent (prepaid 1 month in advance), so the total amount owed as of today is $1040.

(we will ignore any late fees for the time being)

ORS 90.394(2)(a) provides for a 72 hours� written notice of nonpayment and the landlord�s intention to terminate the rental agreement if the rent is not paid within that period.

Tenant has not paid you $1040 that he has promised in the lease (the "nonpayment"), so you may terminate unless he cures it within 3 days.

HAVE YOU WAIVED THE RENT FOR FEBRUARY?

ORS 90.415 addresses an exception to the landlord's right to terminate tenancy based on nonpayment of rent:

(6) Prior to giving a nonpayment of rent termination notice under ORS 90.394, a landlord who accepts partial rent for a rental period does not waive the right to terminate for nonpayment if:

(a) The landlord accepted the partial rent before the landlord gave any notice of intent to terminate under ORS 90.394 based on the tenant�s agreement to pay the balance by a time certain; and

(b) The tenant does not pay the balance of the rent as agreed.

(7) A landlord who accepts partial rent under subsection (6) of this section may proceed to serve a notice under ORS 90.394 to terminate the tenancy if the balance of the rent is not paid, provided:

(a) The notice is served no earlier than it would have been permitted under ORS 90.394 had no rent been accepted; and

(b) The notice permits the tenant to avoid termination of the tenancy for nonpayment of rent by paying the balance within 72 hours or 144 hours, as the case may be, or by any date to which the parties agreed, whichever is later.

(8) After giving a nonpayment of rent termination notice under ORS 90.394, a landlord who accepts partial rent for a rental period does not waive the right to terminate for nonpayment if the landlord and tenant agree in writing that the acceptance does not constitute waiver.

If you are concerned that you may have waived February rent, include only the March amount of $750 and proceed accordingly.

Consult with an attorney to make sure you don't get bumped out of court on a technicality or are concerned about any defenses to the nonpayment of rent that the tenant may raise.