Residential Landlord and Tenant

ORS 90.370
Tenant counterclaims in action by landlord for possession or rent

(1)

(a)

In an action for possession based upon nonpayment of the rent or in an action for rent when the tenant is in possession, the tenant may counterclaim for any amount, not in excess of the jurisdictional limits of the court in which the action is brought, that the tenant may recover under the rental agreement or this chapter, provided that the tenant must prove that prior to the filing of the landlord’s action the landlord reasonably had or should have had knowledge or had received actual notice of the facts that constitute the tenant’s counterclaim.

(b)

In the event the tenant counterclaims, the court at the landlord’s or tenant’s request may order the tenant to pay into court all or part of the rent accrued and thereafter accruing, and shall determine the amount due to each party. The party to whom a net amount is owed shall be paid first from the money paid into court, and shall be paid the balance by the other party. The court may at any time release money paid into court to either party if the parties agree or if the court finds such party to be entitled to the sum so released. If no rent remains due after application of this section and unless otherwise agreed between the parties, a judgment shall be entered for the tenant in the action for possession.

(2)

In an action for rent when the tenant is not in possession, the tenant may counterclaim as provided in subsection (1) of this section but is not required to pay any rent into court.

(3)

If the tenant does not comply with an order to pay rent into the court as provided in subsection (1) of this section, the tenant shall not be permitted to assert a counterclaim in the action for possession.

(4)

If the total amount found due to the tenant on any counterclaims is less than any rent found due to the landlord, and the tenant retains possession solely because the tenant paid rent into court under subsection (1) of this section, no attorney fees shall be awarded to the tenant unless the tenant paid at least the balance found due to the landlord into court no later than the commencement of the trial.

(5)

When a tenant is granted a continuance for a longer period than two days, and has not been ordered to pay rent into court under subsection (1) of this section, the tenant shall be ordered to pay rent into court under ORS 105.140 (Continuance) (2). [Formerly 91.810; 1993 c.369 §9; 1995 c.559 §22]

Notes of Decisions

This section does not unconstitutionally discriminate between residential and nonresidential tenancies. Marquam Investment Corp. v. Beers, 47 Or App 711, 615 P2d 1064 (1980), Sup Ct review denied

If tenant counterclaims and tenders into court any outstanding rent, tenant is entitled to retain possession provided counterclaim award plus tendered rent equal or exceed amount of rent adjudicated due. Napolski v. Champney, 295 Or 408, 667 P2d 1013 (1983)

Tenant, in FED action based on nonpayment of rent, who asserted and recovered on counterclaims and tendered into court, after trial and verdict but before judgment, difference between rent due and recovery on counterclaims was entitled to judgment for possession and was prevailing party. Eddy v. Parazoo, 77 Or App 120, 711 P2d 205 (1985)

When tenant withheld rent in good faith based on alleged habitability violations, landlord brought FED action, and tenant counterclaimed and paid rent into court, tenant was entitled to retain possession even though landlord prevailed on habitability counterclaims and action for rent. Amatisto v. Paz, 82 Or App 341, 728 P2d 42 (1986)

Tenant may allege Unfair Trade Practices Act violation as counterclaim to FED action. Hoffer v. Szumski, 129 Or App 7, 877 P2d 128 (1994)

Payment of rent into court not mandatory for tenant who counterclaims to retain possession if no rent remains due after court offsets any rent due with damages awarded for counterclaim. Timmermann v. Herman, 291 Or App 547, 422 P3d 347 (2018)

Source

Last accessed
May 30, 2023

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