Rob Kline
OTLA New Lawyers Section
I. Habitability
A. “A landlord shall at all times during the tenancy maintain the dwelling unit in a habitable condition.” ORS 90.320(1). The statute further states: “For purposes of this section, a dwelling unit shall be considered unhabitable if it substantially lacks:
“(a) Effective waterproofing and weather protection of roof and exterior walls, including windows and doors;
“(b) Plumbing facilities which 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, which 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 which conform to applicable law at the time of installation and maintained in good working order;
“(e) Electrical lighting with wiring and electrical equipment which 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 (6); or
“ (k) 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 which the tenant is entitled under the rental agreement to occupy to the exclusion of others and keys for such locks which require keys.”
ORS 90.320(1).
B. List is nonexclusive.
A dwelling unit is unhabitable if it suffers from any other condition that “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) [of ORS 90.320(1)] are meant to prevent.” Bellikka v. Green, 306 Or 630, 636, 762 P2d 997 (1988).
C. Strict liability
1. The RLTA creates a statutory cause of action for any violation of the habitability provisions of the statute as follows: “Except as provided in this chapter, the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with * * * ORS 90.320 * * *.” ORS 90.360(2) (emphasis added).
2. No obligation to prove landlord was negligent under ORS 90.320(1)(h): “Floors, walls, ceilings, stairways and railings maintained in good repair* * * .” See, e.g., Eyvonne M. Harris v. Alberta Street Apartments Preservation, Inc., et al., Multnomah County Circuit Court Case No. 0804 05054 (letter opinion of Judge Henry C. Breithaupt dated March 16, 2009 granting plaintiff’s motion for summary judgment) (attached).
II. Case selection
A. Credible plaintiff.
B. Watch out for counterclaims like unpaid rent, action for possession.
C. Special considerations for mold claims.
III. Case investigation
A. Act quickly—get photographs before the landlord repairs the condition.
B. City of Portland Bureau of Development Services. Reporting code violations: www.portlandonline.com/bds/index.cfm?c=34180. (503) 823-CODE.
1. “Free” expert opinion.
2. History of violations.
C. Retaliation.
90.385 provides:
“(1) Except as provided in this section, a landlord may not retaliate by increasing rent or decreasing services, by serving a notice to terminate the tenancy or by bringing or threatening to bring an action for possession after:
“(a) The tenant has complained to, or expressed to the landlord in writing an intention to complain to, a governmental agency charged with responsibility for enforcement of any of the following concerning a violation applicable to the tenancy:
“(A) A building, health or housing code materially affecting health or safety* * *.”
IV. Attorney fees
A. “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.” ORS 90.255 (emphasis added).
B. Although the statute provides that attorney fees “may be awarded” to the prevailing party, “normally a ‘prevailing party’ would be entitled to recover attorney fees, barring unusual circumstances which might arise in any particular case.” Executive Mgt. Corp. v. Juckett, 274 Or 515, 519, 547 P2d 603 (1976).
C. Be careful—no fees for defense of counterclaims.
D. The white hat must be on your client.
“A court shall consider the following factors in determining whether to award attorney fees in any case in which an award of attorney fees is authorized by statute and in which the court has discretion to decide whether to award attorney fees:
“(a) The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith or illegal.
“(b) The objective reasonableness of the claims and defenses asserted by the parties.
“(c) The extent to which an award of an attorney fee in the case would deter others from asserting good faith claims or defenses in similar cases.
“(d) The extent to which an award of an attorney fee in the case would deter others from asserting meritless claims and defenses.
“(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.
“(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.”
ORS 20.075(1) (emphasis added).
E. Create an attorney fee petition that will withstand scrutiny.
1. Track your time carefully.
2. Fully describe each task.
3. Avoid ‘block’ entries.
4. Don’t expect to recover for secretarial tasks.
