Residential Landlord and Tenant

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


(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.


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.


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.


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.


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.


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]

(formerly 91.810)

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)

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