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; 2020 s.s.3 c.3 §§9,18]
Note: The amendments to 90.385 (Retaliatory conduct by landlord) by section 18, chapter 3, Oregon Laws 2020 (third special session), become operative March 1, 2022. See section 22, chapter 3, Oregon Laws 2020 (third special session), as amended by section 4, chapter 39, Oregon Laws 2021. The text that is operative until March 1, 2022, including amendments by section 9, chapter 3, Oregon Laws 2020 (third special session), is set forth for the user’s convenience.
90.385 (Retaliatory conduct by landlord). (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 recover an amount equal to up to three months’ periodic rent or three times the actual damages sustained by the tenant 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).

Source: Section 90.385 — Retaliatory conduct by landlord; tenant remedies and defenses; action for possession in certain cases, https://www.­oregonlegislature.­gov/bills_laws/ors/ors090.­html.

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)

90.100
Definitions
90.105
Short title
90.110
Exclusions from application of this chapter
90.112
Maximum occupancy limit
90.113
Additional exclusion from application of chapter
90.115
Territorial application
90.120
Applicability of other statutory lien, tenancy and rent provisions
90.125
Administration of remedies
90.130
Obligation of good faith
90.135
Unconscionability
90.140
Types of payments landlord may require or accept
90.145
Tenant or applicant who conducts repairs, routine maintenance or cleaning services not employee of landlord
90.147
Delivery of possession
90.148
Landlord acts that imply acceptance of tenant abandonment or relinquishment of right to occupy
90.150
Service or delivery of actual notice
90.155
Service or delivery of written notice
90.160
Calculation of notice periods
90.220
Terms and conditions of rental agreement
90.222
Renter’s liability insurance
90.228
Notice of location in 100-year flood plain
90.230
Rental agreements for occupancy of recreational vehicle in park
90.243
Qualifications for drug and alcohol free housing
90.245
Prohibited provisions in rental agreements
90.250
Receipt of rent without obligation to maintain premises prohibited
90.255
Attorney fees
90.260
Late rent payment charge or fee
90.262
Use and occupancy rules and regulations
90.263
Vehicle tags
90.265
Interest in alternative energy device installed by tenant
90.275
Temporary occupancy agreement
90.295
Applicant screening charges
90.297
Prohibition on charging deposit or fee to enter rental agreement
90.300
Security deposits
90.302
Fees allowed for certain landlord expenses
90.303
Evaluation of applicant
90.304
Statement of reasons for denial
90.305
Disclosure of certain matters
90.310
Disclosure of legal proceedings
90.315
Utility or service payments
90.316
Carbon monoxide alarm
90.317
Repair or replacement of carbon monoxide alarm
90.318
Criteria for landlord provision of certain recycling services
90.320
Landlord to maintain premises in habitable condition
90.322
Landlord or agent access to premises
90.323
Maximum rent increase
90.324
Calculation of maximum rent increase
90.325
Tenant duties
90.340
Occupancy of premises as dwelling unit only
90.360
Effect of landlord noncompliance with rental agreement or obligation to maintain premises
90.365
Failure of landlord to supply essential services
90.367
Application of security deposit or prepaid rent after notice of foreclosure
90.368
Repair of minor habitability defect
90.370
Tenant counterclaims in action by landlord for possession or rent
90.375
Effect of unlawful ouster or exclusion
90.380
Effect of rental of dwelling in violation of building or housing codes
90.385
Retaliatory conduct by landlord
90.390
Discrimination against tenant or applicant
90.391
Information to veterans required in notice
90.392
Termination of tenancy for cause
90.394
Termination of tenancy for failure to pay rent
90.396
Acts or omissions justifying termination 24 hours after notice
90.398
Termination of tenancy for drug or alcohol violations
90.401
Remedies available to landlord
90.403
Taking possession of premises from unauthorized possessor
90.405
Effect of tenant keeping unpermitted pet
90.410
Effect of tenant failure to give notice of absence
90.412
Waiver of termination of tenancy
90.414
Acts not constituting waiver of termination of tenancy
90.417
Duty to pay rent
90.420
Enforceability of landlord liens
90.425
Disposition of personal property abandoned by tenant
90.427
Termination of tenancy without tenant cause
90.429
Termination of tenancy for certain rented spaces not covered by ORS 90.505 to 90.850
90.430
Claims for possession, rent, damages after termination of rental agreement
90.435
Limitation on recovery of possession of premises
90.440
Termination of tenancy in group recovery home
90.445
Termination of tenant committing criminal act of physical violence
90.449
Landlord discrimination against victim
90.453
Termination by tenant who is victim of domestic violence, sexual assault or stalking
90.456
Other tenants remaining in dwelling unit following tenant termination or exclusion due to domestic violence, sexual assault or stalking
90.459
Change of locks at request of tenant who is victim of domestic violence, sexual assault or stalking
90.460
Alternate exit from bedroom required
90.462
Electric vehicle charging stations
90.465
Right of city to recover from owner for costs of relocating tenant due to condemnation
90.472
Termination by tenant called into active state service by Governor
90.475
Termination by tenant due to service with Armed Forces or commissioned corps of National Oceanic and Atmospheric Administration
90.485
Restrictions on landlord removal of vehicle
90.490
Prohibited acts in anticipation of notice of conversion to condominium
90.493
Prohibited acts following notice of conversion to condominium
90.505
Definitions for ORS 90.505 to 90.850
90.510
Statement of policy
90.512
Definitions for ORS 90.514 and 90.518
90.514
Disclosure to prospective tenant of improvements required under rental agreement
90.516
Model statement for disclosure of improvements required under rental agreement
90.518
Provider statement of estimated cost of improvements
90.525
Unreasonable conditions of rental or occupancy prohibited
90.527
Renter’s liability insurance in park
90.528
Use of common areas or facilities
90.530
Pets in facilities
90.545
Fixed term tenancy expiration
90.550
Permissible forms of tenancy
90.555
Subleasing agreements
90.560
Definitions for ORS 90.560 to 90.584
90.562
Utility and service charges
90.564
Charge for cable, satellite or Internet
90.566
Conversion to direct billing for garbage service
90.568
Pro rata billing
90.570
Public service charge pro rata apportionment
90.572
Submeter billing
90.574
Conversion to submeter or pro rata billing for water
90.576
Legislative findings
90.578
Conversion to submeter or direct billing for large parks
90.580
Entry to read submeter
90.584
Park specific billing for water
90.600
Increases in rent
90.605
Persons authorized to receive notice and demands on landlord’s behalf
90.610
Notice of proposed change in rule or regulation
90.620
Termination by tenant
90.630
Termination by landlord
90.632
Termination of tenancy due to physical condition of manufactured dwelling or floating home
90.634
Prohibition against lien for rent
90.640
Park damaged by natural disaster
90.643
Conversion of park to planned community subdivision of manufactured dwellings
90.645
Closure of park
90.650
Notice of tax provisions to tenants of closing park
90.655
Park closure notice to nontenants
90.660
Local regulation of park closures
90.671
Closure of marina
90.675
Disposition of manufactured dwelling or floating home left in facility
90.680
Sale of dwelling or home on rented space
90.710
Causes of action
90.720
Action to enjoin violation of ORS 90.750 or 90.755
90.725
Landlord or agent access to rented space
90.727
Maintenance of trees in rented spaces
90.729
Temporary movement of floating home
90.730
Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition
90.732
Landlord registration
90.734
Manager or owner continuing education requirements
90.736
Civil penalties
90.738
Enforcement of registration and education requirements
90.740
Tenant obligations
90.750
Right to assemble or canvass in facility
90.755
Right to speak on political issues
90.765
Prohibitions on retaliatory conduct by landlord
90.767
Mandatory mediation
90.769
Informal dispute resolution
90.771
Confidentiality of information regarding disputes
90.775
Rules
90.800
Policy
90.840
Park purchase funds, loans
90.842
Notice of sale of facility
90.844
Procedures for purchase of facility by tenants
90.846
Notices and processes in facility transfer
90.848
Exceptions to facility transfer requirements
90.849
Notice of conveyance
90.850
Owner affidavit certifying compliance with requirements for sale of facility
90.860
Definitions for ORS 90.865 to 90.875
90.865
Dealer notice of rent payments and financing
90.870
Manner of giving notice
90.875
Remedy for failure to give notice
Green check means up to date. Up to date