Residential Landlord and Tenant

ORS 90.368
Repair of minor habitability defect


As used in this section, “minor habitability defect”:


Means a defect that may reasonably be repaired for not more than $300, such as the repair of leaky plumbing, stopped up toilets or faulty light switches.


Does not mean the presence of mold, radon, asbestos or lead-based paint.


If, contrary to ORS 90.320 (Landlord to maintain premises in habitable condition), the landlord fails to repair a minor habitability defect, the tenant may cause the repair of the defect and deduct from the tenant’s subsequent rent obligation the actual and reasonable cost of the repair work, not to exceed $300.


(a) Prior to causing a repair under subsection (2) of this section, the tenant shall give the landlord written notice:


Describing the minor habitability defect; and


Stating the tenant’s intention to cause the repair of the defect and deduct the cost of the repair from a subsequent rent obligation if the landlord fails to make the repair by a specified date.


The specified date for repair contained in a written notice given to a landlord under this subsection must be at least seven days after the date the notice is given to the landlord.


If the landlord fails to make the repair by the specified date, the tenant may use the remedy provided by subsection (2) of this section.


Service or delivery of the required written notice shall be made as provided under ORS 90.155 (Service or delivery of written notice).


(a) Any repair work performed under this section must be performed in a workmanlike manner and be in compliance with state statutes, local ordinances and the state building code.


The landlord may specify the people to perform the repair work if the landlord’s specifications are reasonable and do not diminish the tenant’s rights under this section.


The tenant may not perform work to repair the defect.


To deduct the repair cost from the rent, the tenant must provide to the landlord a written statement, prepared by the person who made the repair, showing the actual cost of the repair.


A tenant may not cause the repair of a defect under this section if:


Within the time specified in the notice, the landlord substantially repairs the defect;


After the time specified in the notice, but before the tenant causes the repair to be made, the landlord substantially repairs the defect;


The tenant has prevented the landlord from making the repair;


The defect was caused by a deliberate or negligent act or omission of the tenant or of a person on the premises with the tenant’s consent;


The tenant knew of the defect for more than six months before giving notice under this section; or


The tenant has previously used the remedy provided by this section for the same occurrence of the defect.


If the tenant proceeds under this section, the tenant may not proceed under ORS 90.360 (Effect of landlord noncompliance with rental agreement or obligation to maintain premises) (1) as to that breach, but may use any other available remedy in addition to the remedy provided by this section. [2007 c.508 §2]
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)


Last accessed
Jun. 26, 2021