2015 ORS 90.380¹
Effect of rental of dwelling in violation of building or housing codes
  • remedy

(1) As used in this section, "posted" means that a governmental agency has attached a copy of the agency’s written determination in a secure manner to the main entrance of the dwelling unit or to the premises or building of which the dwelling unit is a part.

(2)(a) If a governmental agency has posted a dwelling unit as unsafe and unlawful to occupy due to the existence of conditions that violate state or local law and materially affect health or safety to an extent that, in the agency’s determination, the tenant must vacate the unit and another person may not take possession of the unit, a landlord may not continue a tenancy or enter into a new tenancy for the dwelling unit until the landlord corrects the conditions that led to the agency’s determination.

(b) If a landlord knowingly violates paragraph (a) of this subsection, the tenant may immediately terminate the tenancy by giving the landlord actual notice of the termination and the reason for the termination and may recover from the landlord either two months’ periodic rent or up to twice the actual damages sustained by the tenant as a result of the violation, whichever is greater. The tenant need not terminate the tenancy to recover damages under this section.

(3)(a) If a governmental agency has given a written notice to a landlord that a dwelling unit has been determined to be unlawful, but not unsafe, to occupy due to the existence of conditions that violate state or local law and materially affect health or safety to an extent that, in the agency’s determination, although the unit is safe for an existing tenant to occupy, another person may not take possession of the unit, the landlord may not enter into a new tenancy for the dwelling unit until the landlord corrects the conditions that led to the agency’s determination.

(b) If a landlord knowingly violates paragraph (a) of this subsection, the tenant may recover from the landlord either two months’ periodic rent or up to twice the actual damages sustained by the tenant as a result of the violation, whichever is greater.

(c) Notwithstanding paragraph (b) of this subsection, a landlord is not liable to a tenant for a violation of paragraph (a) of this subsection if, prior to the commencement of the tenancy, the landlord discloses to the tenant that the dwelling unit has been determined to be unlawful to occupy.

(d) A disclosure described in paragraph (c) of this subsection must be in writing, include a description of the conditions that led to the agency’s determination and state that the landlord is obligated to correct the conditions before entering into a new tenancy. The landlord shall attach a copy of the agency’s notice to the disclosure. The notice copy may provide the information required by this paragraph to be disclosed by the landlord to the tenant.

(e) A disclosure described in paragraph (c) of this subsection does not release the landlord from the duties imposed by this chapter, including the duty to maintain the dwelling unit in a habitable condition pursuant to ORS 90.320 (Landlord to maintain premises in habitable condition) or 90.730 (Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition). A tenant who enters into a tenancy after the landlord’s disclosure does not waive the tenant’s other remedies under this chapter. The disclosure does not prevent the governmental agency that made the determination from imposing on the landlord any penalty authorized by law for entering into the new tenancy.

(4)(a) If a governmental agency has made a determination regarding a dwelling unit and has posted or given notice for conditions described in subsection (2)(a) or (3)(a) of this section, a landlord may not accept from an applicant for that dwelling unit a deposit to secure the execution of a rental agreement pursuant to ORS 90.297 (Prohibition on charging deposit or fee to enter rental agreement) unless, before accepting the deposit, the landlord discloses to the applicant as provided by subsection (3)(c) of this section that the dwelling unit has been determined to be unlawful to occupy.

(b) If a landlord knowingly violates paragraph (a) of this subsection or fails to correct the conditions leading to the agency’s determination before the date a new tenancy is to begin as provided by the agreement to secure the execution of a rental agreement, an applicant may terminate the agreement to secure the execution of the rental agreement by giving the landlord actual notice of the termination and the reason for termination. As a result of a termination, the applicant may recover from the landlord an amount equal to twice the deposit. If an applicant recovers damages for a violation pursuant to this paragraph, the applicant may not recover any amounts under ORS 90.297 (Prohibition on charging deposit or fee to enter rental agreement).

(5) If, after a landlord and a tenant have entered into a tenancy, a governmental agency posts a dwelling unit as unsafe and unlawful to occupy due to the existence of conditions that violate state or local law, that materially affect health or safety and that:

(a) Were not caused by the tenant, the tenant may immediately terminate the tenancy by giving the landlord actual notice of the termination and the reason for the termination; or

(b) Were not caused by the landlord or by the landlord’s failure to maintain the dwelling, the landlord may terminate the tenancy by giving the tenant 24 hours’ written notice of the termination and the reason for the termination, after which the landlord may take possession in the manner provided in ORS 105.105 (Entry to be lawful and peaceable only) to 105.168 (Minor as party in proceedings pertaining to residential dwellings).

(6) If the tenancy is terminated, as a result of conditions as described in subsections (2), (4) and (5) of this section, within 14 days of the notice of termination the landlord shall return to the applicant or tenant:

(a) All of the deposit to secure the execution of a rental agreement, security deposit or prepaid rent owed to the applicant under this section or to the tenant under ORS 90.300 (Security deposits); and

(b) All rent prepaid for the month in which the termination occurs, prorated, if applicable, to the date of termination or the date the tenant vacates the premises, whichever is later.

(7) If conditions at premises that existed at the outset of the tenancy and that were not caused by the tenant pose an imminent and serious threat to the health or safety of occupants of the premises within six months from the beginning of the tenancy, the tenant may immediately terminate the rental agreement by giving the landlord actual notice of the termination and the reason for the termination. In addition, if the landlord knew or should have reasonably known of the existence of the conditions, the tenant may recover either two months’ periodic rent or twice the actual damages sustained by the tenant as a result of the violation, whichever is greater. The tenant need not terminate the rental agreement to recover damages under this section. Within four days of the tenant’s notice of termination, the landlord shall return to the tenant:

(a) All of the security deposit or prepaid rent owed to the tenant under ORS 90.300 (Security deposits); and

(b) All rent prepaid for the month in which the termination occurs, prorated to the date of termination or the date the tenant vacates the premises, whichever is later.

(8)(a) A landlord shall return the money due the applicant or tenant under subsections (6) and (7) of this section either by making the money available to the applicant or tenant at the landlord’s customary place of business or by mailing the money by first class mail to the applicant or tenant.

(b) The applicant or tenant has the option of choosing the method for return of any money due under this section. If the applicant or tenant fails to choose one of these methods at the time of giving the notice of termination, the landlord shall use the mail method, addressed to the last-known address of the applicant or tenant and mailed within the relevant four-day or 14-day period following the applicant’s or tenant’s notice.

(9) If the landlord fails to comply with subsection (8) of this section, the applicant or tenant may recover the money due in an amount equal to twice the amount due. [Formerly 91.817; 1993 c.369 §11; 1995 c.559 §24; 2001 c.596 §32]

Notes of Decisions

Recovery of damages for renting out of "posted" unfit dwelling does not require that notice of unfitness be affixed to dwelling. Sunflower v. Bladorn, 168 Or App 206, 1 P3d 513 (2000)

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.