2015 ORS 90.412¹
Waiver of termination of tenancy

(1) As used in this section and ORS 90.414 (Acts not constituting waiver of termination of tenancy) and 90.417 (Duty to pay rent), "rent" does not include funds paid to a landlord:

(a) Under the United States Housing Act of 1937 (42 U.S.C. 1437f).

(b) By any other local, state or federal housing assistance program.

(2) Except as otherwise provided in this section, a landlord waives the right to terminate a rental agreement for a particular violation of the rental agreement or of law if the landlord:

(a) During three or more separate rental periods, accepts rent with knowledge of the violation by the tenant; or

(b) Accepts performance by a tenant that varies from the terms of the rental agreement.

(3) A landlord has not accepted rent for purposes of subsection (2) of this section if:

(a) Within 10 days after receipt of the rent payment, the landlord refunds the rent; or

(b) The rent payment is made in the form of a check that is dishonored.

(4) A landlord does not waive the right to terminate a rental agreement for a violation under any of the following circumstances:

(a) The landlord and tenant agree otherwise after the violation has occurred.

(b) The violation concerns the tenant’s conduct and, following the violation but prior to acceptance of rent for three rental periods or performance as described in subsection (2) of this section, the landlord gives a written warning notice to the tenant regarding the violation that:

(A) Describes specifically the conduct that constitutes the violation, either as a separate and distinct violation, a series or group of violations or a continuous or ongoing violation;

(B) States that the tenant is required to discontinue the conduct or correct the violation; and

(C) States that a reoccurrence of the conduct that constitutes a violation may result in a termination of the tenancy pursuant to ORS 90.392 (Termination of rental agreement by landlord for cause), 90.398 (Termination of rental agreement for drug or alcohol violations), 90.405 (Effect of tenant keeping unpermitted pet) or 90.630 (Termination by landlord).

(c) The violation concerns the tenant’s failure to pay money owed to the landlord for damage to the premises, damage to any other structure located upon the grounds, utility charges, fees or deposits and, following the violation but prior to the acceptance of rent for three rental periods or performance as described in subsection (2) of this section, the landlord gives a written warning notice to the tenant regarding the violation that:

(A) Describes specifically the basis of the claim and the amount of money owed that constitutes the violation;

(B) States that the tenant is required to correct the violation by paying the money owed; and

(C) States that continued nonpayment of the money owed that constitutes a violation may result in a termination of the tenancy pursuant to ORS 90.392 (Termination of rental agreement by landlord for cause).

(d) The tenancy consists of rented space for a manufactured dwelling or floating home as described in ORS 90.505 (Definition for ORS 90.505 to 90.850), and the violation concerns:

(A) Disrepair or deterioration of the manufactured dwelling or floating home pursuant to ORS 90.632 (Termination of tenancy due to physical condition of manufactured dwelling or floating home); or

(B) A failure to maintain the rented space, as provided by ORS 90.740 (Tenant obligations) (2), (4)(b) and (4)(h) and (i).

(e) The termination is under ORS 90.396 (Acts or omissions justifying termination 24 hours after notice).

(f) The landlord accepts:

(A) A last month’s rent deposit collected at the beginning of the tenancy, regardless of whether the deposit covers a period beyond a termination date;

(B) Rent distributed pursuant to a court order releasing money paid into court as provided by ORS 90.370 (Tenant counterclaims in action by landlord for possession or rent) (1); or

(C) Rent paid for a rent obligation not yet due and paid more than one rental period in advance.

(5)(a) For a continuous or ongoing violation, the landlord’s written warning notice under subsection (4)(b) of this section remains effective for 12 months and may be renewed with a new warning notice before the end of the 12 months.

(b) For a violation concerning the tenant’s failure to pay money owed to the landlord, the landlord’s written warning notice under subsection (4)(c) of this section remains effective for 12 months from the date of the tenant’s failure to pay the money owed.

(6) A landlord that must refund rent under this section shall make the refund to the tenant or other payer by personal delivery or first class mail. The refund may be in the form of the tenant’s or other payer’s check or in any other form of check or money. [2007 c.906 §27; 2013 c.443 §7; 2015 c.388 §4]

Notes of Decisions

Under Former Similar Statute (Ors 90.415)

Where landlord, in two or more separate rental periods, accepts rent with knowledge of default, fact that one acceptance occurs before notice of termina­tion is given is irrelevant. Housing and Community Services Agency of Lane County v. Long, 196 Or App 205, 100 P3d 1123 (2004), 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/­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.