Landlord and Tenant Rights in Oregon

Self-Counsel Press Inc.(a subsidiary of)

International Self-Counsel Press Ltd.USA Canada

LANDLORD/ TENANT RIGHTSIN OREGON

Janay Ann Haas, Attorney

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Introduction xvii

1 Oregon’s Residential Landlord and Tenant Act 1

1. The Origins of the Law 1

2. Who is Covered by the Act? 2

3. What Are the Landlord’s Obligations? 4

3.1 Habitability 4

3.2 Tenant’s privacy 6

3.3 The duty of owners or managers 8to identify themselves

3.4 The duty of landlords to disclose 9

4. What Are the Tenant’s Obligations? 12

2 Starting A Tenancy 15

1. What Tenants Should Know about Landlords 15

2. How Should a Landlord Screen Tenants? 16

2.1 Applicant screening charges, tenant 18screening services, and credit reporting agencies

2.2 What about tenant “blacklisting” services? 19

CONTENTS

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3 Entering Into A Rental Agreement 21

1. Finding a Home 21

1.1 Tenants: What can you afford? 21

1.2 How do you begin the search? 22

1.3 Why avoid agencies? 23

2. Making a Deal 23

2.1 Requirements of a rental agreement 23

2.2 Types of rental agreements 24

2.3 Informal dispute resolution 25

2.4 Provisions a rental agreement cannot contain 25

2.5 Tenant’s duties 26

2.6 Promises concerning repairs and furnishings 26

2.7 Limitations on rent hikes and eviction 27

3. Written versus Verbal Agreements 28

3.1 Problems tenants can avoid with 28oral agreements

3.2 The advantages of written agreements 29

3.3 Subletting and written agreements 29

4. Week-to-Week Rentals 30

5. Teenage Tenants 31

6. Communications between Landlords and Tenants 31

4 Fees and Deposits 33

1. When Can a Landlord Charge Fees and Deposits? 33

1.1 Is it a deposit or a fee? 34

1.2 Deposits 34

1.3 Application fees 36

1.4 Late fees 36

1.5 Dishonored check fees and miscellaneous 37fees and charges

2. How Landlords Can Minimize Damage to 39Rental Units

3. How Tenants Can Protect Their Security 40Deposits and Prevent Getting Sued for Damage

3.1 The move-in inspection 40

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Contents ix

3.2 Getting back a deposit at the end 44of a tenancy

3.3 Why landlords withhold deposits 48

3.4 Small claims court 50

5 “If You Don’t Like It, Why Don’t You Move?” 53

1. Reporting a Habitability Problem 54

2. Demand Letters 55

2.1 Why use a demand letter? 55

2.2 Negotiating and compromising 56

2.3 The risks of demand letters 58

3. Building Inspections 58

3.1 Code violations and the act 59

3.2 How to get an inspection 59

6 Getting Repairs: Withholding Rent and Suing 61the Landlord

1. Lack of Essential Services 62

1.1 The risks 65

2. Substitute Services 66

3. Substitute Housing 68

3.1 The risks 69

4. Repair and Deduct 69

5. Recoupment and Counterclaim 71

5.1 Damages 72

5.2 The remedies 73

5.3 How to use the remedies 75

5.4 The risks 77

6. Suing the Landlord 79

6.1 How to use the remedy 81

6.2 The risks 81

7. Comparing the Remedies 81

8. Hazardous Conditions/Posted Premises 82

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7 Lockouts, Utility Shutoffs, Invasions of Privacy, and 85Seizures of Tenants’ Belongings

1. Lockouts and Utility Shutoffs 85

2. Abuse of Access 88

3. Wrongful Seizure of Personal Belongings 89

8 Evictions and Defenses 91

1. Starting an Eviction Case — Proper Notice 92and Filing

2. For-Cause and No-Cause Evictions 96

2.1 Evictions for nonpayment of rent 98

2.2 Evictions for pet violations 100

2.3 Evictions from drug-free and 100alcohol-free housing

2.4 Evictions of illegal subtenants 102

2.5 Evictions for personal injury, property 102damage, and outrageous conduct

3. Tenant Defenses Against Attempts to Evict Them 105

3.1 The retaliatory eviction defense 106

3.2 The discrimination defense 108

3.3 Equitable defense 109

3.4 Federal housing rights 109

3.5 Terms in the rental agreement 110

3.6 Prepaid rent defense 110

3.7 Defenses to specific kinds of 111for-cause evictions

4. Defective Notice 112

5. Defective Service of Notice 113

6. Material Noncompliance 113

7. Denial of Access 114

8. Unauthorized Pet 115

9. Nonpayment of Rent and Habitability Problems 116

10. Waiver Defense 118

11. New Tenancy Defense 121

12. Deterioration or Disrepair — 121Facility Space Rentals for Manufactured and Floating Homes Only

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13. Repeated Late Payment — 122Facility Space Rentals for Manufactured and Floating Homes Only

14. Crime Victim Defense 123

15. Personal Injury, Property Damage, and 124Outrageous Conduct Defense

16. Defenses to Drug-Free and Alcohol-Free 125Housing Evictions

17. Illegal Subtenant Defense 126

18. Evictions of Resident Managers 126

19. Farm Worker Employee Defense 127

20. Military Service Defense 128

21. Will Counterclaims Defeat Evictions? 128

21.1 When can a tenant counterclaim? 128

21.2 When can a counterclaim allow a 131tenant to stay?

21.3 How to decide whether or not to 132counterclaim

22. Whether and How to Defend Against Eviction 133

22.1 Is a lawyer necessary? 135

22.2 Going to court without legal representation 135

22.3 Judges 139

22.4 Pretrial settlement and trial 140

23. After a Judgment of Eviction (Restitution) 148

24. Can the Tenant Appeal? 148

9 Emergencies, The Police, and Temporary 151Restraining Orders

10 How Do Tenants Leave? 155

1. Ending a Monthly or Weekly Tenancy 155

2. Breaking a Lease 159

2.1 What gives a tenant the right to 159terminate a lease?

2.2 Special circumstances that permit 165termination in all kinds of rental agreements

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2.3 What if the tenant has no right to 166terminate?

3. Are You Gone Yet? 169

11 What Landlords Can Do With Belongings 171Left Behind; How Tenants Can Get Belongings Back

1. What Landlords Can Do 173

2. How Tenants Can Get Their Belongings Back 179

2.1 A simple court action to get property back 181

12 Federal Housing Programs 183

1. Public Housing 184

2. Subsidized Housing 186

3. Rent Subsidies for Tenant-Selected Housing 187

4. Agency Practices That Are Unfair to Tenants 188

13 Mobile Home, Manufactured Home, and 191Floating Home Tenancies

1. The Rental Agreement 192

2. Statement of Policy 193

3. Rules of the Facility 195

4. Conditions of Occupancy 196

5. Termination 197

6. Rent Increases 201

7. Retaliation 201

8. Sales of Mobile homes 202

9. Political Rights 203

10. Facility Purchase by Associations and Nonprofits 204

11. When a Tenant Dies 204

12. Statutory Damages 205

13. Rule Changes and Informal Dispute Resolution 206

14 Housing Discrimination Laws and Other Laws 209Affecting Landlord-Tenant Rights

1. Housing Discrimination 209

1.1 Who is protected 209

1.2 Kinds of discrimination 210

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1.3 State and local anti-discrimination laws 211

1.4 Avoiding discrimination 211

1.5 Tenant remedies 214

2. Other Laws 216

15 Getting Assistance 219

1. Finding an Attorney 219

2. Legislative Lobbying and Tenants’ Unions 221

3. Help in Paying the Rent 222

4. Landlords’ Organizations 223

5. Mobile (Manufactured) Home Resources 223

6. Legal Aid Programs 224

7. Fair Housing (Anti-discrimination) Resources 225

Appendix — Elements of a Residential Eviction 227

Tables

1 Repair remedies and their limitations 80

2 Evictions and defenses 107

Samples

1 Lead warning statement 10

2 Letter to landlord describing defects 42

3 Statement of witness regarding conditions of premises 43

4 Paragraph demanding repairs 43

5 Letter demanding return of part of the deposit 46

6 Letter to landlord explaining deduction of deposit 47from rent

7 Letter demanding repairs (before building inspection) 57

8 Written permission to exceed $500 limit 64

9 Letter threatening substitute service remedy 67

10 Notification of substitute housing remedy 69

11 Notice of repair and deduct remedy 71

12 Repair and deduct notice (after you have repairs made) 72

13 Notice that you are withholding rent due to landlord’s 76breaches

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14 No-cause eviction notice 94

15 Notice of eviction for cause 95

16 Notice of termination for nonpayment of rent 99(72-hour notice)

17 Notice of termination for pet violation 101

18 Notice of eviction for prohibited subtenancy 103

19 Notice of eviction for substantial damage 104

20 Proof of service 137

21 Form answer to eviction 138

22 Counterclaims 138

23 Motion and affidavit for change of judge 141

24 Judgment by stipulation 142

25 Dismissal form 143

26 Termination notice by tenant (month-to-month or 156week-to-week tenancy)

27 “Fix it or I’m leaving” notice 162

28 “Fix it or I’m leaving” notice 163(including essential services)

29 Confirmation of refusal to repair 164

30 Settlement breaking lease 164

31 Termination notice (irremedial violation) 165

32 Notice of termination after finding new tenant 167

33 Notice to tenant regarding abandoned property 175

34 Notice to tenant regarding abandoned property 176including recreational vehicles and manufactured or floating homes

35 Response to landlord’s notice concerning 180abandoned goods

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1. The Origins of the LawMany misunderstandings between landlords and tenants arise be-cause of mistaken beliefs about what the law requires. Some ofthose beliefs reflect what the law used to be in Oregon decadesago, before Oregon passed its Residential Landlord and TenantAct. An understanding of how and why the law has changed ishelpful to understanding the policy behind current law.

Landlord-tenant law in this country originally adopted oldEnglish legal principles. Historically, English landowners providedonly bare land to tenants. The tenants provided their own shelterand paid rent in the form of crops and occasional military servicefor the landlord. If the crop failed, the tenant was sent packingand the landlord got back the land little the worse for wear andtear.

In the last two centuries, the role of the parties has changed.Landlords now provide the housing itself and tenants pay cash forthe shelter provided by the landlord.

CHAPTER ONE

OREGON’S RESIDENTIALLANDLORD AND TENANT ACT

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As housing construction and maintenance became increas-ingly complex, tenants could no longer be expected to have theskill or the money to make repairs to their units. Some landlordscontinued to apply the old rules, however, leaving responsibilityfor upkeep to the tenants. This practice led to acute problems insome urban areas where the inability of tenants to maintain unitsresulted in slum conditions. In response, more and more commu-nities concluded that landlords, because of their superior expertiseand financial condition, should assume responsibility for main-taining basic health and safety standards in residential rental units.

This gradual change in public policy was articulated in amodel statute called the Uniform Residential Landlord and TenantAct, which Oregon adopted with some changes in 1973. The lawis now contained in Chapter 90 of the Oregon Revised Statutes(ORS). The Oregon Residential Landlord and Tenant Act (ORLTA)gives tenants rights to force landlords to make certain repairs andlimits the power of landlords to evict tenants who exercise thoserights.

Probably the hardest point for landlords to accept is that thelaw is intended to enforce basic housing standards for the benefitof the public as well as for the landlord and the tenant. It is easyto see that faulty sewage and plumbing systems can sicken manybesides the tenant of a particular unit; that electrical and other firehazards can put whole neighborhoods at risk; and that accumu-lating garbage can attract dangerous rodents and other vermin, re-sulting in widespread disease. Lawmakers wrestling with the issueof how best to protect public health and safety decided that ten-ants affected by poor housing conditions would be a cheaper lawenforcement mechanism than large code-enforcement bureaucra-cies funded by tax dollars. Thus, a tenant who can’t pay the rent butwho has had to endure conditions that violate ORLTA can raise thoseproblems as a defense to an eviction. If the problems are seriousand the landlord knew or should have known of them, the tenantmay very well get to stay in spite of being behind on the rent.

2. Who is Covered by the Act?ORLTA and this book apply only to residential tenancies. The lawcovers all arrangements between someone who seems reasonablyauthorized to rent a unit and a tenant (including a tenant underage 18), so long as the premises are to be used for the tenant’shome or residence. When the law applies, it gives tenants therights of “exclusive possession” and “quiet enjoyment” of the

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Oregon’s Residential Landlord and Tenant Act 3

property (see section 3.2 for more information), as well as certainother rights outlined below.

The law covers rooms, apartments and houses (both privatelyand publicly owned), mobile homes, floating homes, and othermanufactured housing if their owners rent space for the home.Throughout this book, some of the rights described may be some-what different in manufactured housing and floating home facili-ties (see chapter 13 for more specific information). Neither theresidential law nor this book applies to commercial or businesstenancies, and the laws about those kinds of tenancies do notapply to residential tenancies.

ORLTA does apply if —

(a) the tenancy is not excluded by ORS 90.110, and

(b) there is some form of understanding between —

(i) a “landlord” (the owner, lessor, sublessor, manager,or, in some situations, someone who has the author-ity to act on behalf of a landlord); and

(ii) a person entitled because of that understanding tooccupy a residence or sleeping place.

The coverage of the law is broad, to carry out the public pol-icy described above, but ORS 90.110 excludes the following kindsof occupancies from coverage:

(a) Occupants of institutional residences, such as detentionhomes, nursing care facilities, and school dormitories

(b) Transient occupants of hotels, motels, and users of vaca-tion rentals

(c) Landlords’ employees whose occupancy is conditional onemployment in and about the premises (although housingfor farm workers provides protection from eviction; seechapters 8 and 14)

(d) Condominium owners

(e) Members of cooperatives

(f) Those who rent primarily for agricultural purposes

(g) Buyers occupying premises they are purchasing under acontract of sale, and sellers occupying a place they havejust sold, for no more than 90 days before or after the salecloses, and only if the sale agreement allows for it

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(h) Members of fraternal organizations in buildings operatedfor the benefit of the organizations

(i) Trespassers and “squatters”

Not everyone who stays in hotels or motels is denied protec-tions by the ORLTA. ORS 90.100(44) says that an occupant is “tran-sient” only if all the following criteria apply:

(a) Occupancy charges must be charged on a daily basis andpayable no more than six days in advance.

(b) The management must provide maid and linen servicedaily or every two days.

(c) The period of occupancy must not exceed 30 days. Thelandlord cannot keep an occupant from becoming a ten-ant by changing the person’s room every 30 days.

“Vacation occupancy” is the rental of a dwelling unit for vaca-tion purposes when the occupant has a principal home elsewhereand when the agreed-upon stay is for no more than 45 days.

A landlord cannot avoid the application of the law by makingcreative arrangements: the courts will look at the real nature ofthe relationship. ORLTA specifically points out one such arrangementas improper: a tenant who lives in a rental with an option to pur-chase remains a tenant until the option is exercised (ORS 90.110).

Despite these definitions, it can be difficult to decide whetheryour situation is covered by ORLTA. A knowledgeable lawyer maybe able to help you determine the scope of your rights.

3. What Are the Landlord’s Obligations?3.1 Habitability

ORS 90.320 requires landlords to maintain habitable premises atall times during the tenancy. Habitability requirements include thefollowing:

(a) Plumbing, heating, and electrical systems that conform toapplicable law when installed and must be maintained ingood working order

(b) Effective waterproofing and weather protection

(c) A water supply approved under applicable law, which canbe controlled by the tenant or the landlord. The water


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supply must be capable of producing hot and cold run-ning water, be furnished to appropriate fixtures, and con-nected to a legally approved sewage disposal system,maintained so as to produce safe drinking water, and keptin good working order to the extent that the system canbe controlled by the landlord.

(d) Floors, walls, ceilings, stairways, and railings in good repair

(e) Ventilation, air conditioning, and other appliances (includ-ing elevators) in good repair, if supplied by the landlord

(f) Working smoke detectors and safety from fire hazards(Landlords are responsible for maintaining and testingsmoke detectors in common areas.)

(g) Working locks for all outside doors and keys for any locksrequiring them, and latches for windows as permitted bylaw. (Note: Some tenants who are victims of stalking, do-mestic violence, or sexual assault crimes have the right tochange these at their own expense. See 2003 Oregon Laws,chapter 378, and chapters 10 and 14 of this book.)

(h) At the beginning of the tenancy, the building and groundsmust be safe for normal and reasonable uses. They mustbe clean; sanitary; and free from accumulations of debris,filth, rubbish, garbage, rodents, and vermin. Thereafter,all areas under the control of the landlord must be kept inthese safe and clean conditions.

(i) At the beginning of the tenancy, the landlord must pro-vide an adequate number of trash containers, unless thelandlord and tenant have a written agreement to deal withdisposal some other way or unless local law has differentrequirements. The containers must be clean and in goodrepair, and the landlord must continue to provide andmaintain them throughout the tenancy.

Some cities and counties may require landlords to make recy-cling containers available for tenants. ORS 90.318 describes theduties of landlords in cities with multifamily recycling service.These landlords, if they have at least five units at one location,must provide up to four containers for materials accepted in thecurbside recycling program, arrange for collection services, andnotify new tenants (and then, annually, existing tenants) of how touse the containers and where to find them.

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ORLTA does not allow a landlord to get a tenant to waive theright to a safe, decent place to live (ORS 90.135, 90.245, 90.320).The general rule is that responsibility for maintaining habitabilitybelongs only to the landlord, with one narrow exception. ORS

90.145 permits a landlord to enter into an agreement with a ten-ant or a tenant-to-be to make repairs, do routine maintenance,and clean in the person’s own unit in exchange for a reduction inrent. (This kind of agreement isn’t an option for tenants who wantto get paid to clean up their own messes.) The tenant may not doelectrical or plumbing work unless licensed to do so. ORS 90.320also allows for written agreements with tenants to perform spe-cific repairs or minor remodeling only if the landlord pays the ten-ant for the work and the agreement does not shift theresponsibility for habitability from the landlord to the tenant. Forexample, the landlord and a tenant could agree that the tenantwould paint the tenant’s unit for money, or in lieu of a security de-posit, or some other kind of reimbursement.

No landlord, of course, is responsible for maintaining a man-ufactured home owned by a tenant, although a landlord may beliable for damage to the tenant’s home caused by the landlord’sfailure to maintain safe conditions on the land or moorage wherethe unit sits. Tenants in manufactured housing facilities also havea duty to keep their units safe to prevent harm to others in the facility.

3.2 Tenant’s privacyThe law gives the tenant the right to “exclusive possession” of therental (in other words, privacy) against intrusion by or at the di-rection of the landlord (ORS 90.322). This right of privacy extendsto all parts of the rental property in which the tenant has exclu-sive control (for example, the yard of a single-family rental unlessthe landlord has — in a written rental agreement — taken on theresponsibility of yard maintenance). The right of privacy does notextend to areas used by others, such as halls and stairwells in mul-tifamily buildings. Landlords can enter a tenant’s unit only with acourt order or unless one of the following circumstances applies:

(a) The tenants have abandoned the premises. (The tenantshave left under circumstances clearly demonstrating thatthey have no intention of returning.)

(b) The tenants have relinquished the premises. (They haveexpressly or implicitly given up possession of the premisesfor good.)


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(c) The tenants have been absent for more than seven daysand entry is necessary for a reasonable purpose.

(d) The landlord is entering the premises (but not the dwellingunit itself) to serve notices required or permitted underthe rental agreement, ORLTA, or other applicable law.

(e) There is an emergency, such as a repair problem that islikely to cause serious damage to the premises if not ad-dressed immediately. After this kind of entry, the landlordmust let the tenant know within the following 24 hoursthe date and time of the entry, the emergency that re-quired entry, and the identities of those who entered.

(f) The tenant has asked in writing for the landlord to enterto make repairs. In this case, the tenant authorizes thelandlord to enter to make those repairs at the times spec-ified in the request or, if the tenant doesn’t specify times,at any reasonable time. After a written request for repair,a landlord may enter on demand, in the tenant’s absenceand without consent, until the repairs are complete. Theauthority to enter expires automatically after seven daysfrom the request unless repairs are in progress and thelandlord is making a reasonable effort to complete themin a timely manner. Any worker other than the landlordshould be prepared to show written evidence of his or herauthority to make the repair if the tenant asks for proof.

(g) The landlord has given the tenant at least 24 hours’ actualnotice of intent to enter, so long as the entry is at a rea-sonable time and for a reasonable purpose. (“Actual no-tice” can be made verbally in person, by fax, by phone, oron an answering machine or can be made in writing, de-livered personally or left secured to the main entrance atthe residential address.)

Reasonable purposes include inspections, repairs, dec-orations, alterations, improvements, necessary or agreed-on services, or showing of the unit to buyers or potentialbuyers, tenants, workers, contractors, and mortgagees.

(h) The landlord or agent of the landlord is entering to showthe premises for sale after the landlord and tenant havesigned a valid agreement permitting such entries. Becauseproperty buyers are not likely to await the tenant’s con-venience to see a property for sale, the landlord and ten-ant can make an independent agreement for entry for this

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purpose, provided the property is actively on the marketat the time and provided that the landlord gives the ten-ant fair compensation for the inconvenience. This agree-ment cannot be part of the rental agreement itself. If thetenancy is month to month, the compensation may simplybe that the landlord is giving up the right to evict withoutcause. In tenancies that require cause to evict (and that donot reserve the right to terminate because the landlordwants to show the premises for sale), the landlord mayhave to reduce the rent or give the tenant something elseof value to make the agreement enforceable.

There are some additional limitations on the exceptionsabove. For example, it is unlawful for a landlord to attempt tomake the tenant waive privacy rights in the rental agreement (ORS

90.245).

Landlords cannot abuse the right of access or use it to harasstenants. Landlords who abuse their access right are subject todamages and injunctions. They may not enter if tenants do notconsent, but landlords have a remedy in court against tenants whodeny access unreasonably. In addition, if a government agency re-quires access to any part of the premises under the tenant’s con-trol and the landlord is unable to get in after following this partof ORLTA, the government cannot hold the landlord liable forbeing unable to gain entry.

Landlords of mobile homes, recreational vehicles used ashomes, manufactured housing, and floating homes where thelandlords do not own the housing may enter a rented space onlyfor the purposes of normal maintenance and the posting oflegally-required notices.

3.3 The duty of owners or managers to identifythemselves

The person who enters into the rental agreement on behalf of thelandlord must disclose to the tenant, in writing, at or before thebeginning of the tenancy, the name and address of the person au-thorized to manage the premises and the name and address of anowner or person authorized to act for the owner for the purposesof receiving and giving receipts for notices and demands. If thatperson does not give out this information, everyone who is au-thorized by the landlord to manage or enter into rental agree-ments will be treated as an agent of the landlord (ORS 90.305).


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This information must be kept current. If new owners or man-agers do not keep the information current and the tenant contactsthe prior landlord in good faith, the new landlord is treated ashaving received the contact.

3.4 The duty of landlords to disclose Under the federal Lead Paint Disclosure Act of 1992, landlords ofproperties built before 1978 must warn prospective tenants of thepossibility of harm from exposure to lead-based paint that mayhave been used on the property. This law applies not only to own-ers, but also to their agents and to realtors. Except in certain cir-cumstances (described below), they must —

(a) provide the tenant with a copy of Protect Your Familyfrom Lead in Your Home, an Environmental ProtectionAgency pamphlet available from the National Lead Infor-mation Center at 1-800-424-LEAD;

(b) disclose to the tenant the existence and location of anylead-based paint and paint hazards, the basis for the beliefthat lead-based paint or lead-based paint hazards are pres-ent, and the condition of painted surfaces;

(c) provide the tenant with available records and reportsabout the lead-based paint or hazards on the property (Inmultifamily housing, records and reports about common-area paint or hazards must be disclosed. In some cases,conditions in other units must also be disclosed.); and

(d) do all of the above before entering into the rental agree-ment, giving the prospective tenant an opportunity to re-view the information.

Rental agreements must include a lead warning and tenant ac-knowledgment (see Sample 1). Landlords can find copies of thenecessary forms, along with more detailed information, on theWeb site <www.epa.gov/lead>.

Three types of housing are exempt from the lead-based paintdisclosure law:

(a) Housing for households in which at least one person is 62years old or older at the start of the tenancy

(b) Housing for individuals with disabilities (unless childrenyounger than age 6 live, or are expected to live, there also)

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SAMPLE 1LEAD WARNING STATEMENT

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(c) Units such as studio apartments, barracks, and dormito-ries where the living and sleeping areas are not separate

There are four types of transactions that are also exempt fromthe law:

(a) Sales on foreclosure

(b) Housing that has been certified to be free of lead-basedpaint by an accredited inspector

(c) Renewals of existing leases after a landlord has alreadydisclosed and has no new information

(d) Closed-term, nonrenewable leases of 100 or fewer days

For existing tenants, the landlord’s duty to disclose ariseswhen there is any significant change in rent amount or other leaseterms.

If the premises in which the dwelling unit is located containno more than four dwelling units, the landlord must notify thetenant when the rental agreement is to be executed (i.e., soonenough so the tenant can decide not to rent) if the premises aresubject to —

(a) an outstanding notice of default under a trust deed or atrustee’s sale;

(b) a pending suit to foreclose a mortgage, trust deed, or ven-dor’s lien under a contract of sale;

(c) a pending declaration of forfeiture or suit for specific per-formance of a contract of sale; or

(d) a pending proceeding to foreclose a tax lien.

A tenant who has to move as a result of a circumstance thelandlord failed to disclose is entitled to twice the actual damagesor twice the monthly rent, whichever is greater, and all prepaidrent. “Actual damages” include moving expenses if the tenant candemonstrate that they were caused by the landlord’s omission. Inother words, a tenant who decides to move across the countrywon’t get moving expenses, even if the move was the result of aproceeding the landlord should have told the tenant about whenthe rental agreement was being negotiated (ORS 90.310).

As a practical matter, a tenant may be unsuccessful in gettingany satisfaction from a landlord in this situation even if the tenantgets a judgment against the landlord in court. A landlord in such

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serious financial straits that a foreclosure is underway may havelittle left for the tenant to take in compensation.

These disclosure obligations don’t affect a court-appointed re-ceiver or a manager who has complied with the disclosure re-quirements listed in the last section and who was ignorant of thecircumstance that should have been disclosed. The remedies runagainst the landlord who should have told the manager to tell thetenant instead of against both the manager and the landlord.

Landlords also must disclose, in writing at or before the be-ginning of the tenancy, any utility or service for which the tenantpays directly to a provider and which directly benefits the land-lord or other tenants (ORS 90.315).

4. What Are the Tenant’s Obligations?This may seem obvious, but tenants can occupy a residential unitonly as a residence, unless the parties agree otherwise (and if zon-ing laws permit additional uses) (ORS 90.340).

Under ORS 90.325, tenants must use all portions of the prem-ises and all facilities and appliances “reasonably.” Tenants are alsoresponsible for —

• keeping the areas under their control as clean, sanitary,and free of trash as the condition of the premises per-mits;

• removing rodents or other vermin they have brought orencouraged to come onto the property;

• cooperating with landlords’ reasonable efforts to fixproblems at the property; and

• disposing of waste in a clean, safe, and lawful manner. Inthe case of needles, syringes, and other infectious waste,that means following specific state health and safety laws(ORS 459.386).

• paying required fees and deposits.

The following three duties are also required by tenants (andcan become complicated in a tenancy involving roommates):

• Tenants must pay agreed-on rent when it is due.

• Tenants must not damage, deliberately or accidentally,any part of the premises.

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• Tenants must not disturb their neighbors. This duty in-cludes controlling the behavior of guests.

What do the paying roommates do if one roommate stopspaying? What if the tenants have a lease and one of them movesout before the lease period ends? What happens if one of theroommates moves out and the remaining tenants can’t afford therent? What is the liability of conscientious roommates for a co-tenant who damages the rental or has rowdy parties or out-of-control visitors? While most tenants might feel more securehaving separate rental agreements when they have roommates,most landlords are not interested in becoming involved in squab-bles regarding which of the roommates should be evicted becauseof a string of disturbances or who is responsible for which portionof the rent. Landlords will prefer one rental agreement that makeseach cosignor fully responsible for carrying out that agreement.

Tenants may not unreasonably deny access to the rental by thelandlord after the landlord has given reasonable notice and has alegitimate reason to enter (ORS 90.322). Tenants must test battery-operated smoke detectors provided by the landlord according tothe manufacturer’s instructions at least every six months. They areresponsible for replacing batteries once the set provided by thelandlord no longer works. If the smoke alarm doesn’t work prop-erly, a tenant can hold the landlord liable for fire damage onlyafter giving the landlord written notice that the alarm is defective.Tenants may not remove or tamper with a working smoke detec-tor and may not remove working batteries.

Rental agreements can impose other requirements on tenants.For example, they can require the tenant to give actual notice tothe landlord of any expected absence of more than seven days nolater than the first day of that absence (ORS 90.340).

All tenants have a duty under the law to notify landlords ofhabitability problems (to prevent the problem’s getting worse andmore expensive to repair) and of their intention to move. (Seechapter 10 for details).

Chap01.qxd 3/10/2009 1:59 PM Page 13

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Landlord and Tenant Rights in Oregon

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