Residential Landlord and Tenant

ORS 90.320
Landlord to maintain premises in habitable condition

  • agreement with tenant to maintain premises

(1)

A landlord shall at all times during the tenancy maintain the dwelling unit in a habitable condition. For purposes of this section, a dwelling unit shall be considered unhabitable if it substantially lacks:

(a)

Effective waterproofing and weather protection of roof and exterior walls, including windows and doors;

(b)

Plumbing facilities that conform to applicable law in effect at the time of installation, and maintained in good working order;

(c)

A water supply approved under applicable law that is:

(A)

Under the control of the tenant or landlord and is capable of producing hot and cold running water;

(B)

Furnished to appropriate fixtures;

(C)

Connected to a sewage disposal system approved under applicable law; and

(D)

Maintained so as to provide safe drinking water and to be in good working order to the extent that the system can be controlled by the landlord;

(d)

Adequate heating facilities that conform to applicable law at the time of installation and maintained in good working order;

(e)

Electrical lighting with wiring and electrical equipment that conform to applicable law at the time of installation and maintained in good working order;

(f)

Buildings, grounds and appurtenances at the time of the commencement of the rental agreement in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, and all areas under control of the landlord kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;

(g)

Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of the commencement of the rental agreement, and the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange for their removal;

(h)

Floors, walls, ceilings, stairways and railings maintained in good repair;

(i)

Ventilating, air conditioning and other facilities and appliances, including elevators, maintained in good repair if supplied or required to be supplied by the landlord;

(j)

Safety from fire hazards, including a working smoke alarm or smoke detector, with working batteries if solely battery-operated, provided only at the beginning of any new tenancy when the tenant first takes possession of the premises, as provided in ORS 479.270 (Owner of rental dwelling unit to supply, install and maintain smoke alarm or smoke detector), but not to include the tenant’s testing of the smoke alarm or smoke detector as provided in ORS 90.325 (Tenant duties) (1);

(k)

A carbon monoxide alarm, and the dwelling unit:

(A)

Contains a carbon monoxide source; or

(B)

Is located within a structure that contains a carbon monoxide source and the dwelling unit is connected to the room in which the carbon monoxide source is located by a door, ductwork or a ventilation shaft; or

(L)

Working locks for all dwelling entrance doors, and, unless contrary to applicable law, latches for all windows, by which access may be had to that portion of the premises that the tenant is entitled under the rental agreement to occupy to the exclusion of others and keys for those locks that require keys.

(2)

The landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only if:

(a)

The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;

(b)

The agreement does not diminish the obligations of the landlord to other tenants in the premises; and

(c)

The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated.

(3)

Any provisions of this section that reasonably apply only to a structure that is used as a home, residence or sleeping place shall not apply to a manufactured dwelling, recreational vehicle or floating home where the tenant owns the manufactured dwelling, recreational vehicle or floating home, rents the space and, in the case of a dwelling or home, the space is not in a facility. Manufactured dwelling or floating home tenancies in which the tenant owns the dwelling or home and rents space in a facility shall be governed by ORS 90.730 (Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition), not by this section. [Formerly 91.770; 1993 c.369 §6; 1995 c.559 §15; 1997 c.249 §32; 1997 c.577 §17; 1999 c.307 §20; 1999 c.676 §11; 2009 c.591 §12; 2013 c.294 §9]

(formerly 91.770)

Notes of Decisions

Damages for emotional distress are not available for landlord's nonculpable or negligent failure to maintain premises in habitable condition under this section. Brewer v. Erwin, 287 Or 435, 600 P2d 398 (1979)

The application of this section does not result in an unconstitutional taking of property. Marquam Investment Corp. v. Beers, 47 Or App 711, 615 P2d 1064 (1980), Sup Ct review denied

The distinction drawn in this section between landlords and tenants by granting certain rights to tenants and placing certain responsibilities on landlords does not violate equal protection. Marquam Investment Corp. v. Beers, 47 Or App 711, 615 P2d 1064 (1980), Sup Ct review denied

This section does not unconstitutionally impair the ability to contract. Marquam Investment Corp. v. Beers, 47 Or App 711, 615 P2d 1064 (1980), Sup Ct review denied

Where no evidence to show by what amount conditions claimed to render house uninhabitable diminished its rental value, trial court properly dismissed action for diminished value under this section. Lane v. Kelley, 57 Or App 197, 643 P2d 1397 (1982), Sup Ct review denied

Plaintiffs, who had requested jury instruction that included statement that dwelling unit be considered uninhabitable if lacking adequate heating facilities maintained in good order, were entitled to have their theory of case presented to jury. Paprock v. Defenbaugh, 71 Or App 624, 693 P2d 654 (1984), Sup Ct review denied

Patio deck within residential tenant's exclusive control was "floor" within meaning of this section and landlord was required to maintain floor in good repair. Humbert v. Sellars, 300 Or 113, 708 P2d 344 (1985)

Oregon courts have not recognized implied warranty of habitability. Bellikka v. Green, 306 Or 630, 762 P2d 997 (1988)

Covering over swimming pool skimmer in tenant's backyard constituted "floor" under this section and landlords were thus required to maintain covering in "good repair." Appleberry v. Berry, 98 Or App 398, 779 P2d 205 (1989), Sup Ct review denied

Unhabitable condition causing statutory violation does not depend on landlord knowledge of condition. Davis v. Campbell, 327 Or 584, 965 P2d 1017 (1998)

Law Review Citations

16 WLR 854 (1980)

Chapter 90

Notes of Decisions

The prevailing party in an action brought under this Act is entitled to attorney fees. Executive Management v. Juckett, 274 Or 515, 547 P2d 603 (1976)

Damages for mental distress are not recoverable under this Act. Ficker v. Diefenbach, 34 Or App 241, 578 P2d 467 (1978), as modified by 35 Or App 829, 578 P2d 467 (1978)

Where tenant terminates residential tenancy but then holds over wrongfully, landlord need not give any notice to tenant as prerequisite to maintaining action for possession. Skourtes v. Schaer, 36 Or App 659, 585 P2d 703 (1978), Sup Ct review denied

Landlord may waive statutory right to 30 days' written notice from tenant. Skourtes v. Schaer, 36 Or App 659, 585 P2d 703 (1978), Sup Ct review denied

This act does not provide for recovery of punitive damages. Brewer v. Erwin, 287 Or 435, 600 P2d 398 (1979)

As this act is not penal, it is not subject to attack for vagueness. Marquam Investment Corp. v. Beers, 47 Or App 711, 615 P2d 1064 (1980), Sup Ct review denied

Distinction in this act between residential and nonresidential tenancies is not irrational, arbitrary or unreasonable under United States or Oregon Constitution. Marquam Investment Corp. v. Beers, 47 Or App 711, 615 P2d 1064 (1980), Sup Ct review denied

Residential Landlord and Tenant Act does not supersede common law in all aspects of personal injury liability. Bellikka v. Green, 306 Or 630, 762 P2d 997 (1988)

Where jury returned general verdict for defendant and court refused to award defendant attorney fees, defendant has right, absent "unusual circumstances," to receive attorney fees for damages for prevailing on personal injury claim. Steininger v. Tosch, 96 Or App 493, 773 P2d 15 (1989), Sup Ct review denied

Where tenants counterclaim for injunctive relief and damages after landlord sent 30-day, no-cause eviction notice, before awarding attorney fees, district court must determine whether landlord or tenants have right to possession of house and whether tenants' right to assert counterclaim is provided by statute. Edwards v. Fenn, 308 Or 129, 775 P2d 1375 (1989)

Atty. Gen. Opinions

Private process server in a forcible entry and detainer action, (1975) Vol 37, p 869; applicability to university housing and properties, (1976) Vol 37, p 1297

Law Review Citations

56 OLR 655 (1977); 16 WLR 275 (1979); 16 WLR 835 (1980)

Source

Last accessed
Jun. 26, 2021

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