ORS 90.360
Effect of landlord noncompliance with rental agreement or obligation to maintain premises; generally


(1)

(a) Except as provided in this chapter, if there is a material noncompliance by the landlord with the rental agreement or a noncompliance with ORS 90.320 (Landlord to maintain premises in habitable condition) or 90.730 (Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition), the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than 30 days after delivery of the notice if the breach is not remedied in seven days in the case of an essential service or 30 days in all other cases, and the rental agreement shall terminate as provided in the notice subject to paragraphs (b) and (c) of this subsection. However, in the case of a week-to-week tenancy, the rental agreement will terminate upon a date not less than seven days after delivery of the notice if the breach is not remedied.

(b)

If the breach is remediable by repairs, the payment of damages or otherwise and if the landlord adequately remedies the breach before the date specified in the notice, the rental agreement shall not terminate by reason of the breach.

(c)

If substantially the same act or omission that constituted a prior noncompliance of which notice was given recurs within six months, the tenant may terminate the rental agreement upon at least 14 days’ written notice specifying the breach and the date of termination of the rental agreement. However, in the case of a week-to-week tenancy, the tenant may terminate the rental agreement upon at least seven days’ written notice specifying the breach and date of termination of the rental agreement.

(2)

Except as provided in this chapter, the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or ORS 90.320 (Landlord to maintain premises in habitable condition) or 90.730 (Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition). The tenant shall not be entitled to recover damages for a landlord noncompliance with ORS 90.320 (Landlord to maintain premises in habitable condition) or 90.730 (Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition) if the landlord neither knew nor reasonably should have known of the condition that constituted the noncompliance and:

(a)

The tenant knew or reasonably should have known of the condition and failed to give actual notice to the landlord in a reasonable time prior to the occurrence of the personal injury, damage to personal property, diminution in rental value or other tenant loss resulting from the noncompliance; or

(b)

The condition was caused after the tenancy began by the deliberate or negligent act or omission of someone other than the landlord or a person acting on behalf of the landlord.

(3)

The remedy provided in subsection (2) of this section is in addition to any right of the tenant arising under subsection (1) of this section.

(4)

The tenant may not terminate or recover damages under this section for a condition caused by the deliberate or negligent act or omission of the tenant or other person on the premises with the tenant’s permission or consent.

(5)

If the rental agreement is terminated, the landlord shall return all security deposits and prepaid rent recoverable by the tenant under ORS 90.300 (Security deposits). [Formerly 91.800; 1993 c.369 §8; 1995 c.559 §20; 1997 c.577 §19; 1999 c.603 §21; 1999 c.676 §13]

(formerly 91.800)

Notes of Decisions

Injunction requiring landlord to “bring the premises into compliance with the City of Portland Housing Codes” exceeded remedial authority granted by this section to extent code compliance was not embodied in or did not coincide with habitability requirements of [former] ORS 91.770. L & M Investment Co. v. Morrison, 44 Or App 309, 605 P2d 1247 (1980), Sup Ct review denied

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

City termination of water service deprived tenants of property right in cause of action for injunctive relief. Turpen v. City of Corvallis, 26 F3d 978 (9th Cir. 1994)

Landlord knowledge of habitability violation is not predicate to recovery. Davis v. Campbell, 144 Or App 288, 925 P2d 1248 (1996), aff’d 327 Or 584, 965 P2d 1017 (1998)

Law Review Citations

16 WLR 846 (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)


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Last accessed
May. 15, 2020