2015 ORS 90.302¹
Fees allowed for certain landlord expenses
  • accounting not required
  • fees for noncompliance with written rules
  • tenant remedies

Caution-flag-2-25x25
This section is amended
Effective March 15, 2016
Relating to housing; creating new provisions; amending ORS 90.220, 90.302 and 90.460; and declaring an emergency.

(1) A landlord may not charge a fee at the beginning of the tenancy for an anticipated landlord expense and may not require the payment of any fee except as provided in this section. A fee must be described in a written rental agreement.

(2) A landlord may charge a tenant a fee for each occurrence of the following:

(a) A late rent payment, pursuant to ORS 90.260 (Late rent payment charge or fee).

(b) A dishonored check, pursuant to ORS 30.701 (Actions against maker of dishonored check) (5). The amount of the fee may not exceed the amount described in ORS 30.701 (Actions against maker of dishonored check) (5) plus any amount that a bank has charged the landlord for processing the dishonored check.

(c) Removal or tampering with a properly functioning smoke alarm, smoke detector or carbon monoxide alarm, as provided in ORS 90.325 (Tenant duties) (2). The landlord may charge a fee of up to $250 unless the State Fire Marshal assesses the tenant a civil penalty for the conduct under ORS 479.990 (Penalties) or under ORS 105.836 (Definitions for ORS 105.836 to 105.842 and 476.725) to 105.842 (Tampering with carbon monoxide alarm) and 476.725 (Statewide standards for residential carbon monoxide alarms).

(d) The violation of a written pet agreement or of a rule relating to pets in a facility, pursuant to ORS 90.530 (Pets in facilities).

(e) The abandonment or relinquishment of a dwelling unit during a fixed term tenancy without cause. The fee may not exceed one and one-half times the monthly rent. A landlord may not assess a fee under this paragraph if the abandonment or relinquishment is pursuant to ORS 90.453 (Termination by tenant who is victim of domestic violence, sexual assault or stalking) (2), 90.472 (Termination by tenant called into active state service by Governor) or 90.475 (Termination by tenant due to service with Armed Forces or commissioned corps of National Oceanic and Atmospheric Administration). If the landlord assesses a fee under this paragraph:

(A) The landlord may not recover unpaid rent for any period of the fixed term tenancy beyond the date that the landlord knew or reasonably should have known of the abandonment or relinquishment;

(B) The landlord may not recover damages related to the cost of renting the dwelling unit to a new tenant; and

(C) ORS 90.410 (Effect of tenant failure to give notice of absence) (3) does not apply to the abandonment or relinquishment.

(3)(a) A landlord may charge a tenant a fee under this subsection for a second noncompliance or for a subsequent noncompliance with written rules or policies that describe the prohibited conduct and the fee for a second noncompliance, and for any third or subsequent noncompliance, that occurs within one year after a written warning notice described in subparagraph (A) of this paragraph. Except as provided in paragraph (b)(H) of this subsection, the fee may not exceed $50 for the second noncompliance within one year after the warning notice for the same or a similar noncompliance or $50 plus five percent of the rent payment for the current rental period for a third or subsequent noncompliance within one year after the warning notice for the same or a similar noncompliance. The landlord:

(A) Shall give a tenant a written warning notice that describes:

(i) A specific noncompliance before charging a fee for a second or subsequent noncompliance for the same or similar conduct; and

(ii) The amount of the fee for a second noncompliance, and for any subsequent noncompliance, that occurs within one year after the warning notice.

(B) Shall give a tenant a written notice describing the noncompliance when assessing a fee for a second or subsequent noncompliance that occurs within one year after the warning notice.

(C) Shall give a warning notice for a noncompliance or assess a fee for a second or subsequent noncompliance within 30 days after the act constituting noncompliance.

(D) May terminate a tenancy for a noncompliance consistent with this chapter instead of assessing a fee under this subsection, but may not assess a fee and terminate a tenancy for the same noncompliance.

(E) May not deduct a fee assessed pursuant to this subsection from a rent payment for the current or a subsequent rental period.

(b) A landlord may charge a tenant a fee for occurrences of noncompliance with written rules or policies as provided in paragraph (a) of this subsection for the following types of noncompliance:

(A) The late payment of a utility or service charge that the tenant owes the landlord as described in ORS 90.315 (Utility or service payments).

(B) Failure to clean up pet waste from a part of the premises other than the dwelling unit.

(C) Failure to clean up the waste of a service animal or a companion animal from a part of the premises other than the dwelling unit.

(D) Failure to clean up garbage, rubbish and other waste from a part of the premises other than the dwelling unit.

(E) Parking violations.

(F) The improper use of vehicles within the premises.

(G) Smoking in a clearly designated nonsmoking unit or area of the premises.

(H) Keeping on the premises an unauthorized pet capable of causing damage to persons or property, as described in ORS 90.405 (Effect of tenant keeping unpermitted pet). The fee for a second or any subsequent noncompliance under this subparagraph may not exceed $250. A landlord may not assess this fee before 48 hours after the required warning notice to the tenant.

(4) A landlord may not be required to account for or return to the tenant any fee.

(5) Except as provided in subsection (2)(e) of this section, a landlord may not charge a tenant any form of liquidated damages, however designated.

(6) Nonpayment of a fee is not grounds for termination of a rental agreement for nonpayment of rent under ORS 90.394 (Termination of rental agreement for failure to pay rent), but is grounds for termination of a rental agreement for cause under ORS 90.392 (Termination of rental agreement by landlord for cause) or 90.630 (Termination by landlord) (1).

(7) This section does not apply to:

(a) Attorney fees awarded pursuant to ORS 90.255 (Attorney fees);

(b) Applicant screening charges paid pursuant to ORS 90.295 (Applicant screening charge);

(c) Charges for improvements or other actions that are requested by the tenant and are not required of the landlord by the rental agreement or by law, including the cost to replace a key lost by a tenant;

(d) Processing fees charged to the landlord by a credit card company and passed through to the tenant for the use of a credit card by the tenant to make a payment when:

(A) The credit card company allows processing fees to be passed through to the credit card holder; and

(B) The landlord allows the tenant to pay in cash or by check;

(e) A requirement by a landlord in a written rental agreement that a tenant obtain and maintain renters liability insurance pursuant to ORS 90.222 (Renters liability insurance); or

(f) Assessments, as defined in ORS 94.550 (Definitions for ORS 94.550 to 94.783) and 100.005 (Definitions), for a dwelling unit that is within a homeowners association organized under ORS 94.625 (Formation of homeowners association) or an association of unit owners organized under ORS 100.405 (Association of unit owners), respectively, if:

(A) The assessments are imposed by the association on a landlord who owns a dwelling unit within the association and the landlord passes the assessments through to a tenant of the unit;

(B) The assessments are imposed by the association on any person for expenses related to moving into or out of a unit located within the association;

(C) The landlord sets forth the assessment requirement in the written rental agreement at the commencement of the tenancy; and

(D) The landlord gives a copy of the assessment the landlord receives from the association to the tenant before or at the time the landlord charges the tenant.

(8) If a landlord charges a tenant a fee in violation of this section, the tenant may recover twice the actual damages of the tenant or $300, whichever is greater. This penalty does not apply to fees described in subsection (2) of this section. [1995 c.559 §13; 1997 c.577 §14; 1999 c.307 §19; 1999 c.603 §16; 2005 c.391 §18; 2009 c.431 §13; 2009 c.591 §11; 2013 c.294 §8; 2015 c.388 §3]

Notes of Decisions

Because money was not charged by landlord in rental agree­ment, term in lease and purchase op­tion contract that referred to $5,000 nonrefundable move in fee was not illegal fee for purposes of this sec­tion. Charter v. Kearney (In re Colen), 516 B.R. 618 (Bkrtcy. D. Or. 2014)

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/­ors090.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 90, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano090.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.