August 23, 2018
Author: Timothy L. Murphy
Organization: Attorney At Law
Oregon Habitability Requirements
The enumerated habitability requirements for rental properties governed by RLTA are contained in ORS 90.320. But there may be a violation of the general habitability requirement when a shortcoming of the premises \"pose[s] danger to health or safety of the same kind and as serious as those which the specific requirements of paragraphs (a) through (k) are meant to prevent.\" Bellikka v. Green, 306 Or 630, 762 P2d 997 (1988)
There may also be local habitability requirements. For example, the City of Portland’s habitability requirements for rental properties are contained in Title 29 of the Portland City Code. In addition to outlining habitability requirements, ORS 90.320 (2) also specifically addresses how a landlord may hire a tenant to perform “specified repairs, maintenance tasks and minor remodeling.” The landlord and tenant may agree that the tenant may perform specified repairs, maintenance tasks and minor remodeling if:
(a) The agreement of the parties is entered into in good faith and not for the purpose of evading the obligations of the landlord;
(b) The agreement does not diminish the obligations of the landlord to other tenants in the premises; and
(c) The terms and conditions of the agreement are clearly and fairly disclosed and adequate consideration for the agreement is specifically stated.
90.320 Landlord to maintain premises in habitable condition; agreement with tenant to maintain premises. (1) A landlord shall at all times during the tenancy maintain the dwelling unit in a habitable condition. For purposes of this section, a dwelling unit shall be considered inhabitable if it substantially lacks:
(a) Effective waterproofing and weather protection of roof and exterior walls, including windows and doors;
(b) Plumbing facilities that conform to applicable law in effect at the time of installation, and maintained in good working order;
(c) A water supply approved under applicable law that is:
(A) Under the control of the tenant or landlord and is capable of producing hot and cold running water;
(B) Furnished to appropriate fixtures;
(C) Connected to a sewage disposal system approved under applicable law; and
(D) Maintained so as to provide safe drinking water and to be in good working order to the extent that the system can be controlled by the landlord;
(d) Adequate heating facilities that conform to applicable law at the time of installation and maintained in good working order;
(e) Electrical lighting with wiring and electrical equipment that conform to applicable law at the time of installation and maintained in good working order;
(f) Buildings, grounds and appurtenances at the time of the commencement of the rental agreement in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, and all areas under control of the landlord kept in every part safe for normal and reasonably foreseeable uses, clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin;
(g) Except as otherwise provided by local ordinance or by written agreement between the landlord and the tenant, an adequate number of appropriate receptacles for garbage and rubbish in clean condition and good repair at the time of the commencement of the rental agreement, and the landlord shall provide and maintain appropriate serviceable receptacles thereafter and arrange
for their removal;
(h) Floors, walls, ceilings, stairways and railings maintained in good repair;
(i) Ventilating, air conditioning and other facilities and appliances, including elevators, maintained in good repair if supplied or required to be supplied by the landlord;
(j) Safety from fire hazards, including a working smoke alarm or smoke detector, with working batteries if solely battery-operated, provided only at the beginning of any new tenancy when the tenant first takes possession of the premises, as provided in ORS 479.270, but not to include the tenant’s testing of the smoke alarm or smoke detector as provided in ORS 90.325 (1);
(k) A carbon monoxide alarm, and the dwelling unit:
(A) Contains a carbon monoxide source; or
(B) Is located within a structure that contains a carbon monoxide source and the dwelling unit is connected to the room in which the carbon monoxide source is located by a door, ductwork or a ventilation shaft; or
(L) Working locks for all dwelling entrance doors, and, unless contrary to applicable law, latches for all windows, by which access may be had to that portion of the premises that the tenant is entitled under the rental agreement to occupy to the exclusion of others and keys for those locks that require keys.
Tenants Duties Related to Habitability Problems
The RLTA imposes reasonable duties upon the tenant as a result of any tenancy. Under ORS 90.325,
(1) The tenant shall:
(a) Use the parts of the premises including the living room, bedroom, kitchen, bathroom and dining room in a reasonable manner considering the purposes for which they were designed and intended.
(b) Keep all areas of the premises under control of the tenant in every part as clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, as the condition of the premises permits and to the extent that the tenant is responsible for causing the problem. The tenant shall cooperate to a reasonable extent in assisting the landlord in any reasonable effort to remedy the problem.
(c) Dispose from the dwelling unit all ashes, garbage, rubbish and other waste in a clean, safe and legal manner. With regard to needles, syringes and other infectious waste, as defined in ORS 459.386, the tenant may not dispose of these items by placing them in garbage receptacles or in any other place or manner except as authorized by state and local governmental agencies.
(d) Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits.
(e) Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances including elevators in the premises.
(f) Test at least once every six months and replace batteries as needed in any smoke alarm, smoke detector or carbon monoxide alarm provided by the landlord and notify the landlord in writing of any operating deficiencies.
(g) Behave and require other persons on the premises with the consent of the tenant to behave in a manner that will not disturb the peaceful enjoyment of the premises by neighbors.
(2) A tenant may not:
(a) Remove or tamper with a smoke alarm, smoke detector or carbon monoxide alarm as described in ORS 105.842 or 479.300.
(b) Deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or knowingly permit any person to do so.
Damages for Failing to Correct Problems
Claims for damages resulting from habitability violations are made under ORS 90.360 and 90.365. Although a tenant may have a claim for damages resulting from a habitability violation, that tenant also has a duty to mitigate any damages he/she is suffering. Under ORS 90.125, “the aggrieved party has a duty to mitigate damages.”
Although most habitability claims are made by tenants, the Residential Landlord Tenant Act applies more broadly. In Humbert v. Sellars, the Court applied ORS Ch 90 to a tenant's guest. Humbert v. Sellars, 300 Or 113, 708 P2d 344 (1985) (“\"The measure of a 'habitable condition' may be what is habitable by those who reside in the premises, but when the measure is breached, [the RLTA] recognizes that others may suffer the consequences.\"). In Bellikka v. Green, the Court applied ORS Ch 90 to a parent walking trick-or-treaters across a lawn. Bellikka v. Green, 306 Or 630, 762 P2d 997 (1988). See also Brewer v. Erwin, 287 Or. at 441 (“the purpose of [ORS 90.125] is as much to extend the range of \"aggrieved parties\" beyond the parties to the rental agreement as it is to prescribe damages between the landlord and tenant.”) Generally, ORS 90.320 describes the minimum habitability requirements for Oregon. It’s worth noting that ORS 90.320 begins with “… a dwelling unit shall be considered unhabitable if it substantially lacks….” In Amatisto v. Paz, there was undisputed evidence that a tenant’s roof leaked enough to damage the ceilings in two closets and a bathroom. Nevertheless, the trial court concluded that tenant had not sustained her burden of proof on the alleged habitability violations. Amatisto v. Paz, 82 Or.App. 341, 728 P.2d 42 (1986). Upon review, the Court of Appeals agreed with the trial court’s reasoning that the habitability deficiencies were not substantial. It found:
The trial court heard the evidence on the various allegations, weighed it, assessed the credibility of the witnesses and reached a conclusion that tenant had not met her burden of proof. There is evidence to support the court's finding that the deficiencies were not \"substantial,\" and we can not disturb it on appeal. Amatisto v. Paz, 82 Or.App at 344.
The seminal case addressing damages under the OR RLTA is Brewer v. Erwin, 287 Or. 435, 600 P.2d 398 (1979). The Court took an expansive evaluation to damages, stating:
[W]hen other statutory indications are lacking, the key to damages seems to be to determine what kind of harm, in the setting of a normal residential rental transaction, can reasonably be said to lie within the contemplation of the protective provision of the act upon which the claim is founded. Id at 449. Although the Court declined to permit punitive damages or allow a tenant to recover due to worry/anxiety caused by a dispute itself, it did allow a tenant to seek recovery of “actual damages” that included only emotional distress and psychological impairment. It found:
This is not equivalent to an open ended measure of general damages for \"pain and suffering\" drawn from tort law. We understand \"actual damages\" or \"damages\" to refer to compensation for tangible harm resulting from the statutory violation, though it need not be economic harm. The harm must be of a kind within the contemplation of the protective provision that was breached. It does not extend to the sort of annoyance, anger, or sense of frustration that frequently accompanies a dispute over a business transaction even when these common reactions are described as \"emotional distress.\" … This court has held that worry and anxiety over a contractual dispute as such does not support a claim for damages for emotional distress even when defendant was guilty of a clear breach of contract. Farris v. U. S. Fid. and Guar. Co., 284 Or. 453, 587 P.2d 1015 (1978).
On the other hand, such necessary recognition and acceptance of the risk of controversy need not preclude recovery of damages when tangible consequences such as physical illness, medical bills, inability to sleep, to eat or work in one's dwelling, separation of family members or similar disruptions of one's personal life result from the events or conditions that breach the standards of secure occupancy and essential services guaranteed by the act, rather than from the strain of preoccupation and vexation with the dispute itself. If physical hardship and impairment can give rise to a claim for \"actual damages\" under the act, we see nothing to exclude such actual impairment because it is \"psychological\" or \"emotional\" rather than physical. Accordingly, it was error to sustain a demurrer to the sixth amended complaint on the ground that such psychic injuries cannot give rise to a claim for damages under the act.
90.125 Administration of remedies; enforcement.
(1) The remedies provided by this chapter shall be so administered that an aggrieved party may recover appropriate damages. The aggrieved party has a duty to mitigate damages.
(2) Any right or obligation declared by this chapter is enforceable by action unless the provision declaring it specifies a different and limited effect.
90.360 Effect of landlord noncompliance with rental agreement or obligation to maintain premises; generally.
(1)(a) Except as provided in this chapter, if there is a material noncompliance by the landlord with the rental agreement or a noncompliance with ORS 90.320 or 90.730, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than 30 days after delivery of the notice if the breach is not remedied in seven days in the case of an essential service or 30 days in all other cases, and the rental agreement shall terminate as provided in the notice subject to paragraphs (b) and (c) of this subsection. However, in the case of a week-to-week tenancy, the rental agreement will terminate upon a date not less than seven days after delivery of the notice if the breach is not remedied.
(b) If the breach is remediable by repairs, the payment of damages or otherwise and if the landlord adequately remedies the breach before the date specified in the notice, the rental agreement shall not terminate by reason of the breach.
(c) If substantially the same act or omission that constituted a prior noncompliance of which notice was given recurs within six months, the tenant may terminate the rental agreement upon at least 14 days’ written notice specifying the breach and the date of termination of the rental agreement. However, in the case of a week-to-week tenancy, the tenant may terminate the rental agreement upon at least seven days’ written notice specifying the breach and date of termination of the rental agreement.
(2) Except as provided in this chapter, the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or ORS 90.320 or 90.730. The tenant shall not be entitled to recover damages for a landlord noncompliance with ORS 90.320 or 90.730 if the landlord neither knew nor reasonably should have known of the condition that constituted the noncompliance and:
(a) The tenant knew or reasonably should have known of the condition and failed to give actual notice to the landlord in a reasonable time prior to the occurrence of the personal injury, damage to personal property, diminution in rental value or other tenant loss resulting from the noncompliance; or
(b) The condition was caused after the tenancy began by the deliberate or negligent act or omission of someone other than the landlord or a person acting on behalf of the landlord.
(3) The remedy provided in subsection (2) of this section is in addition to any right of the tenant arising under subsection (1) of this section.
(4) The tenant may not terminate or recover damages under this section for a condition caused by the deliberate or negligent act or omission of the tenant or other person on the premises with the tenant’s permission or consent.
(5) If the rental agreement is terminated, the landlord shall return all security deposits and prepaid rent recoverable by the tenant under ORS 90.300.
90.365 Failure of landlord to supply essential services; remedies.
(1) If contrary to the rental agreement or ORS 90.320 or 90.730 the landlord intentionally or negligently fails to supply any essential service, the tenant may give written notice to the landlord specifying the breach and that the tenant may seek substitute services, diminution in rent damages or substitute housing. After allowing the landlord a reasonable time and reasonable access under the circumstances to supply the essential service, the tenant may:
(a) Procure reasonable amounts of the essential service during the period of the landlord’s noncompliance and deduct their actual and reasonable cost from the rent;
(b) Recover damages based upon the diminution in the fair rental value of the dwelling unit; or
(c) If the failure to supply an essential service makes the dwelling unit unsafe or unfit to occupy, procure substitute housing during the period of the landlord’s noncompliance, in which case the tenant is excused from paying rent for the period of the landlord’s noncompliance. In addition, the tenant may recover as damages from the landlord the actual and reasonable cost or fair and reasonable value of comparable substitute housing in excess of the rent for the dwelling unit. For purposes of this paragraph, substitute housing is comparable if it is of a quality that is similar to or less than the quality of the dwelling unit with regard to basic elements including cooking and refrigeration services and, if warranted, upon consideration of factors such as location in the same area as the dwelling unit, the availability of substitute housing in the area and the expense relative to the range of choices for substitute housing in the area. A tenant may choose substitute housing of relatively greater quality, but the tenant’s damages shall be limited to the cost or value of comparable substitute housing.
(2) If contrary to the rental agreement or ORS 90.320 or 90.730 the landlord fails to supply any essential service, the lack of which poses an imminent and serious threat to the tenant’s health, safety or property, the tenant may give written notice to the landlord specifying the breach and that the rental agreement shall terminate in not less than 48 hours unless the breach is remedied within that period. If the landlord adequately remedies the breach before the end of the notice period, the rental agreement shall not terminate by reason of the breach. As used in this subsection, “imminent and serious threat to the tenant’s health, safety or property” shall not include the presence of radon, asbestos or lead-based paint or the future risk of flooding or seismic hazard, as defined by ORS 455.447.
(3) For purposes of subsection (1) of this section, a landlord shall not be considered to be intentionally or negligently failing to supply an essential service if:
(a) The landlord substantially supplies the essential service; or
(b) The landlord is making a reasonable and good faith effort to supply the essential service and the failure is due to conditions beyond the landlord’s control.
(4) This section does not require a landlord to supply a cooking appliance or a refrigerator if the landlord did not supply or agree to supply a cooking appliance or refrigerator to the tenant.
(5) If the tenant proceeds under this section, the tenant may not proceed under ORS 90.360
(1) as to that breach.
(6) Rights of the tenant under this section do not arise if the condition was caused by the deliberate or negligent act or omission of the tenant or a person on the premises with the tenant’s consent.
(7) Service or delivery of actual or written notice shall be as provided by ORS 90.150 and 90.155, including the addition of three days to the notice period if written notice is delivered by first class mail.