Residential Landlord and Tenant

ORS 90.385
Retaliatory conduct by landlord

  • tenant remedies and defenses
  • action for possession in certain cases

(1)

Except as provided in this section, a landlord may not retaliate by increasing rent or decreasing services, by serving a notice to terminate the tenancy or by bringing or threatening to bring an action for possession after:

(a)

The tenant has complained to, or expressed to the landlord in writing an intention to complain to, a governmental agency charged with responsibility for enforcement of any of the following concerning a violation applicable to the tenancy:

(A)

A building, health or housing code materially affecting health or safety;

(B)

Laws or regulations concerning the delivery of mail; or

(C)

Laws or regulations prohibiting discrimination in rental housing;

(b)

The tenant has made any complaint to the landlord that is in good faith and related to the tenancy;

(c)

The tenant has organized or become a member of a tenants’ union or similar organization;

(d)

The tenant has testified against the landlord in any judicial, administrative or legislative proceeding;

(e)

The tenant successfully defended an action for possession brought by the landlord within the previous six months except if the tenant was successful in defending the action only because:

(A)

The termination notice by the landlord was not served or delivered in the manner required by ORS 90.155 (Service or delivery of written notice); or

(B)

The period provided by the termination notice was less than that required by the statute upon which the notice relied to terminate the tenancy; or

(f)

The tenant has performed or expressed intent to perform any other act for the purpose of asserting, protecting or invoking the protection of any right secured to tenants under any federal, state or local law.

(2)

As used in subsection (1) of this section, “decreasing services” includes:

(a)

Unreasonably restricting the availability of or placing unreasonable burdens on the use of common areas or facilities by tenant associations or tenants meeting to establish a tenant organization; and

(b)

Intentionally and unreasonably interfering with and substantially impairing the enjoyment or use of the premises by the tenant.

(3)

If the landlord acts in violation of subsection (1) of this section the tenant is entitled to the remedies provided in ORS 90.375 (Effect of unlawful ouster or exclusion) and has a defense in any retaliatory action against the tenant for possession.

(4)

Notwithstanding subsections (1) and (3) of this section, a landlord may bring an action for possession if:

(a)

The complaint by the tenant was made to the landlord or an agent of the landlord in an unreasonable manner or at an unreasonable time or was repeated in a manner having the effect of unreasonably harassing the landlord. A determination whether the manner, time or effect of a complaint was unreasonable shall include consideration of all related circumstances preceding or contemporaneous to the complaint;

(b)

The violation of the applicable building or housing code was caused primarily by lack of reasonable care by the tenant or other person in the household of the tenant or upon the premises with the consent of the tenant;

(c)

The tenant was in default in rent at the time of the service of the notice upon which the action is based; or

(d)

Compliance with the applicable building or housing code requires alteration, remodeling or demolition which would effectively deprive the tenant of use of the dwelling unit.

(5)

For purposes of this section, a complaint made by another on behalf of a tenant is considered a complaint by the tenant.

(6)

For the purposes of subsection (4)(c) of this section, a tenant who has paid rent into court pursuant to ORS 90.370 (Tenant counterclaims in action by landlord for possession or rent) shall not be considered to be in default in rent.

(7)

The maintenance of an action under subsection (4) of this section does not release the landlord from liability under ORS 90.360 (Effect of landlord noncompliance with rental agreement or obligation to maintain premises) (2). [Formerly 91.865; 1995 c.559 §25; 1997 c.303 §1; 1999 c.603 §23; 2011 c.42 §8]

(formerly 91.865)

Notes of Decisions

Disputable presumption, that action taken by landlord against tenant within six months after complaint is retaliatory, did not arise where tenant did not make complaint concerning electrical deficiencies to Bureau of Buildings until after notice of proposed rent increase. Ficker v. Diefenbach, 34 Or App 241, 578 P2d 467 (1978), as modified by 35 Or App 829 (1978)

Complaint stating that landlord pried back porch off house and left large pile of debris scattered in tenant's backyard adequately alleged decrease in services under this section. Brewer v. Erwin, 287 Or 435, 600 P2d 398 (1979)

Distinction drawn by this section 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

This section does not violate Article I, Section 10 of the Oregon Constitution by impeding access to the courts. Marquam Investment Corp. v. Beers, 47 Or App 711, 615 P2d 1064 (1980), Sup Ct review denied

This section does not permit involuntary servitude, compel unwilling performance of strictly personal services or permit an unconstitutional taking of property in violation of Oregon or United States Constitutions. Marquam Investment Corp. v. Beers, 47 Or App 711, 615 P2d 1064 (1980), Sup Ct review denied

The disputable presumption in former version of this section did not result in denial of due process, under the Oregon or United States constitutions or violate Oregon constitutional provision relating to separation of powers or trial by jury. Marquam Investment Corp. v. Beers, 47 Or App 711, 615 P2d 1064 (1980), Sup Ct review denied

This section does not contain an unconstitutional delegation of authority. Marquam Investment Corp. v. Beers, 47 Or App 711, 615 P2d 1064 (1980), Sup Ct review denied

Where tenancy is under fixed-term lease, prohibition against landlord bringing action for possession ceases upon expiration of lease. Pendergrass v. Fagan, 218 Or App 533, 180 P3d 110 (2008), Sup Ct review denied

To prove retaliation under section, tenant must establish that landlord served notice of termination because of tenant's complaint; tenant need not additionally prove that complaint caused landlord actual or perceived injury or that landlord intended to cause tenant equivalent injury in return. Elk Creek Management Co. v. Gilbert, 353 Or 565, 303 P3d 929 (2013)

Law Review Citations

16 WLR 850 (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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