2007 ORS 90.255¹
Attorney fees

In any action on a rental agreement or arising under this chapter, reasonable attorney fees at trial and on appeal may be awarded to the prevailing party together with costs and necessary disbursements, notwithstanding any agreement to the contrary. As used in this section, "prevailing party" means the party in whose favor final judgment is rendered. [Formerly 91.755]

Notes of Decisions

Since this sec­tion does not provide that attorney fees are to be considered part of costs, in order to be recovered they must be separately pleaded and proved at trial. Pacific NW Dev. Corp. v. Holloway, 274 Or 367, 546 P2d 1063 (1976); Pritchett v. Fry, 286 Or 189, 593 P2d 1133 (1979)

Where landlord initiated FED ac­tion seeking pos­ses­sion, tenant made counterclaim for damages, and landlord was awarded pos­ses­sion while tenant was awarded damages, no "prevailing party" existed and thus award of attorney fees was abuse of discre­tion. Marquam Invest­ment Corp. v. Myers, 35 Or App 23, 581 P2d 545 (1978), Sup Ct review denied

Tenant represented by legal aid organiza­tion was entitled to award of attorney fees under this sec­tion. West v. French, 51 Or App 143, 625 P2d 144 (1981)

Where final judg­ment is rendered for pos­ses­sion to tenant, rent to landlord and for landlord on counterclaims, outcome is too inconclusive to warrant discre­tionary award of attorney fees to either party. Amatisto v. Paz, 82 Or App 341, 728 P2d 42 (1986)

Defendant, as prevailing party in landlord-tenant ac­tion, is entitled to attorney fees under this sec­tion when pleadings state claim under Residential Landlord and Tenant Act, despite plaintiff's characteriza­tion of claim as one for common law waste. Kunce v. Van Schoonhoven, 83 Or App 458, 732 P2d 70 (1987), Sup Ct review denied

This sec­tion applies to writ of review pro­ceed­ing when litiga­tion concerns pos­ses­sion of rental premises under rental agree­ment. Whittle v. Marion County District Court, 108 Or App 463, 816 P2d 658 (1991)

Where results of pro­ceed­ings were conclusive, peti­tioners prevailed on sole claim before court and there were no unusual circumstances, court erred in failing to exercise its discre­tion to award attorney fees under this sec­tion. Whittle v. Marion County District Court, 108 Or App 463, 816 P2d 658 (1991)

Attorney fees shall be awarded to prevailing party absent unusual circumstances. Tanner v. Grissom, 135 Or App 309, 898 P2d 797 (1995)

"Reasonable attorney fees" may be based on contingent fee agree­ment. Coulter Property Manage­ment, Inc. v. James, 160 Or App 390, 981 P2d 395 (1999)

Prevailing party's entitle­ment to attorney fees in absence of unusual circumstances is addi­tional factor court must consider under ORS 20.075 (Factors to be considered by court in awarding attorney fees) when deciding whether to award attorney fees. Stocker v. Keith, 178 Or App 544, 38 P3d 283 (2002)

Dismissal of plaintiff's complaint makes defendant prevailing party without regard to reasons leading to dismissal. Brennan v. La Tourelle Apart­ments, 184 Or App 235, 56 P3d 423 (2002)

Where defendant prevails on claim and plaintiff prevails on counterclaim, both defendant and plaintiff are prevailing parties who may recover attorney fees for claims on which they prevailed. Barlow Trail Mobile Home Park v. Dunham, 189 Or App 513, 76 P3d 1146 (2003)

Where both parties prevail on claims and counterclaims, party obtaining net award under judg­ment is prevailing party. LeBrun v. Cal-Am Properties, Inc., 197 Or App 177, 106 P3d 647 (2005), Sup Ct review denied

Where both parties prevail on claims and counterclaims, but no damages are awarded to either party, each party is prevailing party with regard to claim on which it prevailed. LeBrun v. Cal-Am Properties, Inc., 197 Or App 177, 106 P3d 647 (2005), Sup Ct review denied

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)

1 Legislative Counsel Committee, CHAPTER 90—Residential Landlord and Tenant, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­090.­html (2007) (last ac­cessed Feb. 12, 2009).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 90, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­090ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.