TITLE 10

PROPERTY RIGHTS AND TRANSACTIONS

Chapter 90. Residential Landlord and Tenant

91. Tenancy

92. Subdivisions and Partitions

93. Conveyancing and Recording

94. Real Property Development

95. Fraudulent Transfers and Conveyances

96. Line and Partition Fences

97. Rights and Duties Relating to Cemeteries, Human Bodies and Anatomical Gifts

98. Lost, Unclaimed or Abandoned Property; Vehicle Towing

99. Property Removed by High Water

100. Condominiums

101. Continuing Care Retirement Communities

105. Property Rights

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Chapter 90 — Residential Landlord and Tenant

2009 EDITION

RESIDENTIAL LANDLORD AND TENANT

PROPERTY RIGHTS AND TRANSACTIONS

GENERAL PROVISIONS

90.100 Definitions

90.105 Short title

90.110 Exclusions from application of this chapter

90.113 Additional exclusion from application of chapter

90.115 Territorial application

90.120 Applicability of other statutory lien, tenancy and rent provisions; applicability of ORS 90.100 to 90.465 and 90.505 to 90.840

90.125 Administration of remedies; enforcement

90.130 Obligation of good faith

90.135 Unconscionability

90.140 Types of payments landlord may require or accept; written evidence of payment

90.145 Tenant or applicant who conducts repairs, routine maintenance or cleaning services not employee of landlord; restrictions

90.147 Delivery of possession

90.148 Landlord acts that imply acceptance of tenant abandonment or relinquishment of right to occupy

SERVICE OR DELIVERY OF NOTICES

90.150 Service or delivery of actual notice

90.155 Service or delivery of written notice

90.160 Calculation of notice periods

CONTENT OF AGREEMENTS

90.220 Terms and conditions of rental agreement; smoking policy; rent obligation and payment

90.228 Notice of location in 100-year flood plain

90.230 Rental agreements for occupancy of recreational vehicle in park; remedy for noncompliance; exception

90.243 Qualifications for drug and alcohol free housing; “program of recovery” defined

90.245 Prohibited provisions in rental agreements; remedy

90.250 Receipt of rent without obligation to maintain premises prohibited

90.255 Attorney fees

90.260 Late rent payment charge or fee; restrictions; calculation

90.262 Use and occupancy rules and regulations; adoption; enforceability; restrictions

90.263 Vehicle tags

90.265 Interest in alternative energy device installed by tenant

TEMPORARY OCCUPANCY AGREEMENT

90.275 Temporary occupancy agreement; terms and conditions

FEES AND DEPOSITS

90.295 Applicant screening charge; limitations; notice upon denial of tenancy; refund; remedies

90.297 Prohibition on charging deposit or fee to enter rental agreement; exceptions; deposit allowed for securing execution of rental agreement; remedy

90.300 Security deposits; prepaid rent

90.302 Fees allowed for certain landlord expenses; accounting not required

LANDLORD RIGHTS AND OBLIGATIONS

90.304 Statement of reasons for denial; remedy for noncompliance

90.305 Disclosure of certain matters; retention of rental agreement; inspection of agreement

90.310 Disclosure of legal proceedings; tenant remedies for failure to disclose; liability of manager

90.315 Utility or service payments; additional charges; responsibility for utility or service; remedies

90.316 Carbon monoxide alarm

90.317 Repair or replacement of carbon monoxide alarm

90.318 Criteria for landlord provision of certain recycling services

90.320 Landlord to maintain premises in habitable condition; agreement with tenant to maintain premises

90.322 Landlord or agent access to premises; remedies

TENANT OBLIGATIONS

90.325 Tenant duties

90.340 Occupancy of premises as dwelling unit only; notice of tenant absence

TENANT REMEDIES

90.360 Effect of landlord noncompliance with rental agreement or obligation to maintain premises; generally

90.365 Failure of landlord to supply essential services; remedies

90.367 Application of security deposit or prepaid rent after notice of foreclosure

90.368 Repair of minor habitability defect

90.370 Tenant counterclaims in action by landlord for possession or rent

90.375 Effect of unlawful ouster or exclusion; willful diminution of services

90.380 Effect of rental of dwelling in violation of building or housing codes; remedy

90.385 Retaliatory conduct by landlord prohibited; tenant remedies and defenses; action for possession in certain cases

90.390 Discrimination against tenant or applicant; tenant defense

LANDLORD REMEDIES

90.392 Termination of rental agreement by landlord for cause; tenant right to cure violation

90.394 Termination of rental agreement for failure to pay rent

90.396 Acts or omissions justifying termination 24 hours after notice

90.398 Termination of rental agreement for drug or alcohol violations

90.401 Remedies available to landlord

90.403 Taking possession of premises from unauthorized possessor

90.405 Effect of tenant keeping unpermitted pet

90.410 Effect of tenant failure to give notice of absence; absence; abandonment

90.412 Waiver of termination of tenancy

90.414 Acts not constituting waiver of termination of tenancy; delivery of rent refund

90.417 Duty to pay rent; effect of acceptance of partial rent

90.420 Enforceability of landlord liens; distraint for rent abolished

90.425 Disposition of personal property abandoned by tenant; notice; sale; limitation on landlord liability; tax cancellation; storage agreements; hazardous property

90.427 Termination of periodic tenancies; landlord remedies for tenant holdover

90.429 Termination of tenancy for certain rented spaces not covered by ORS 90.505 to 90.840

90.430 Claims for possession, rent, damages after termination of rental agreement

90.435 Limitation on recovery of possession of premises

90.440 Termination of tenancy in group recovery home; recovery of possession; damages

DOMESTIC VIOLENCE, SEXUAL ASSAULT OR STALKING

90.445 Termination of tenant committing criminal act of physical violence

90.449 Landlord discrimination against victim; exception; tenant defenses and remedies

90.453 Termination by tenant who is victim of domestic violence, sexual assault or stalking; verification statement

90.456 Other tenants remaining in dwelling unit following tenant termination or exclusion due to domestic violence, sexual assault or stalking

90.459 Change of locks at request of tenant who is victim of domestic violence, sexual assault or stalking

MISCELLANEOUS

90.465 Right of city to recover from owner for costs of relocating tenant due to condemnation; defense

90.472 Termination by tenant called into active state service by Governor

90.475 Termination by tenant due to service with Armed Forces

90.485 Restrictions on landlord removal of vehicle; exceptions

90.490 Prohibited acts in anticipation of notice of conversion to condominium; damages

90.493 Prohibited acts following notice of conversion to condominium; damages

MANUFACTURED DWELLING AND FLOATING HOME SPACES

(General Provisions)

90.505 Definition for ORS 90.505 to 90.840; application of statutes

90.510 Statement of policy; rental agreement; rules and regulations; remedies

90.512 Definitions for ORS 90.514 and 90.518

90.514 Disclosure to prospective tenant of improvements required under rental agreement

90.516 Model statement for disclosure of improvements required under rental agreement; rules

90.518 Provider statement of estimated cost of improvements

90.525 Unreasonable conditions of rental or occupancy prohibited

90.528 Use of common areas or facilities

90.530 Pets in facilities; rental agreements; violations

90.531 Definitions for ORS 90.531 to 90.539

90.532 Billing methods for utility or service charges; system maintenance; restriction on charging for water

90.533 Conversion of billing method for garbage collection and disposal

90.534 Allocated charges for utility or service provided directly to space or common area

90.535 Additional charge for cable, satellite or Internet services

90.536 Charges for utilities or services measured by submeter

90.537 Conversion of billing method for utility or service charges

90.538 Tenant inspection of utility billing records

90.539 Entry to read submeter

90.540 Permissible forms of tenancy; minimum fixed term

90.545 Fixed term tenancy expiration; renewal or extension; new rental agreements; tenant refusal of new rental agreement; written storage agreement upon termination of tenancy

90.555 Subleasing agreements

(Landlord and Tenant Relations)

90.600 Increases in rent; notice; meeting with tenants; effect of failure to meet

90.605 Persons authorized to receive notice and demands on landlord’s behalf; written notice to change designated person

90.610 Informal dispute resolution; notice of proposed change in rule or regulation; objection to change by tenant

90.620 Termination by tenant; notice to landlord

90.630 Termination by landlord; causes; notice; cure; repeated nonpayment of rent

90.632 Termination of tenancy due to physical condition of manufactured dwelling or floating home; correction of condition by tenant

90.634 Prohibition against lien for rent; action for possession; disposition of dwelling or home; disposition of goods

90.645 Closure of manufactured dwelling park; notices; payments to tenants

90.650 Notice of tax provisions to tenants of closing manufactured dwelling park; rules

90.655 Park closure notice to nontenants; report of tenant reactions

90.660 Local regulation of park closures

90.671 Closure of marina; notices; payments to tenants; rules

(Ownership Change)

90.675 Disposition of manufactured dwelling or floating home left in facility; notice; sale; limitation on landlord liability; tax cancellation; storage agreements; hazardous property

90.680 Sale of dwelling or home on rented space; duties and rights of seller, prospective purchaser and landlord

(Actions)

90.710 Causes of action; limit on cause of action of tenant; attorney fees

90.720 Action to enjoin violation of ORS 90.750 or 90.755

(Landlord Rights and Obligations)

90.725 Landlord or agent access to rented space; remedies

90.730 Landlord duty to maintain rented space, vacant spaces and common areas in habitable condition

(Temporary provisions relating to landlord registration and continuing education for manufactured dwelling park managers and owners are compiled as notes following ORS 90.730)

(Tenant Rights and Obligations)

90.740 Tenant obligations

90.750 Right to assemble or canvass in facility; limitations

90.755 Right to speak on political issues; limitations; placement of political signs

90.760 Notice to tenants’ association when park becomes subject to listing agreement

90.765 Prohibitions on retaliatory conduct by landlord

90.771 Confidentiality of information regarding disputes

90.775 Rules

(Facility Purchase by Tenants)

90.800 Policy

90.810 Association notification of possible sale of facility

90.815 Incorporation of facility purchase association

90.820 Facility purchase by association or nonprofit corporation; procedures

90.830 Facility owner affidavit of compliance with procedures

90.840 Park purchase funds, loans

(Dealer Sales of Manufactured Dwellings)

90.860 Definitions for ORS 90.865 to 90.875

90.865 Dealer notice of rent payments and financing

90.870 Manner of giving notice; persons entitled to notice

90.875 Remedy for failure to give notice

GENERAL PROVISIONS

90.100 Definitions. As used in this chapter, unless the context otherwise requires:

(1) “Accessory building or structure” means any portable, demountable or permanent structure, including but not limited to cabanas, ramadas, storage sheds, garages, awnings, carports, decks, steps, ramps, piers and pilings, that is:

(a) Owned and used solely by a tenant of a manufactured dwelling or floating home; or

(b) Provided pursuant to a written rental agreement for the sole use of and maintenance by a tenant of a manufactured dwelling or floating home.

(2) “Action” includes recoupment, counterclaim, setoff, suit in equity and any other proceeding in which rights are determined, including an action for possession.

(3) “Applicant screening charge” means any payment of money required by a landlord of an applicant prior to entering into a rental agreement with that applicant for a residential dwelling unit, the purpose of which is to pay the cost of processing an application for a rental agreement for a residential dwelling unit.

(4) “Building and housing codes” includes any law, ordinance or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use or appearance of any premises or dwelling unit.

(5) “Conduct” means the commission of an act or the failure to act.

(6) “Dealer” means any person in the business of selling, leasing or distributing new or used manufactured dwellings or floating homes to persons who purchase or lease a manufactured dwelling or floating home for use as a residence.

(7) “Domestic violence” means:

(a) Abuse between family or household members, as those terms are defined in ORS 107.705; or

(b) Abuse, as defined in ORS 107.705, between partners in a dating relationship.

(8) “Drug and alcohol free housing” means a dwelling unit described in ORS 90.243.

(9) “Dwelling unit” means a structure or the part of a structure that is used as a home, residence or sleeping place by one person who maintains a household or by two or more persons who maintain a common household. “Dwelling unit” regarding a person who rents a space for a manufactured dwelling or recreational vehicle or regarding a person who rents moorage space for a floating home as defined in ORS 830.700, but does not rent the home, means the space rented and not the manufactured dwelling, recreational vehicle or floating home itself.

(10) “Essential service” means:

(a) For a tenancy not consisting of rental space for a manufactured dwelling, floating home or recreational vehicle owned by the tenant and not otherwise subject to ORS 90.505 to 90.840:

(A) Heat, plumbing, hot and cold running water, gas, electricity, light fixtures, locks for exterior doors, latches for windows and any cooking appliance or refrigerator supplied or required to be supplied by the landlord; and

(B) Any other service or habitability obligation imposed by the rental agreement or ORS 90.320, the lack or violation of which creates a serious threat to the tenant’s health, safety or property or makes the dwelling unit unfit for occupancy.

(b) For a tenancy consisting of rental space for a manufactured dwelling, floating home or recreational vehicle owned by the tenant or that is otherwise subject to ORS 90.505 to 90.840:

(A) Sewage disposal, water supply, electrical supply and, if required by applicable law, any drainage system; and

(B) Any other service or habitability obligation imposed by the rental agreement or ORS 90.730, the lack or violation of which creates a serious threat to the tenant’s health, safety or property or makes the rented space unfit for occupancy.

(11) “Facility” means a manufactured dwelling park or a marina.

(12) “Facility purchase association” means a group of three or more tenants who reside in a facility and have organized for the purpose of eventual purchase of the facility.

(13) “Fee” means a nonrefundable payment of money.

(14) “First class mail” does not include certified or registered mail, or any other form of mail that may delay or hinder actual delivery of mail to the recipient.

(15) “Fixed term tenancy” means a tenancy that has a fixed term of existence, continuing to a specific ending date and terminating on that date without requiring further notice to effect the termination.

(16) “Floating home” has the meaning given that term in ORS 830.700. “Floating home” includes an accessory building or structure.

(17) “Good faith” means honesty in fact in the conduct of the transaction concerned.

(18) “Hotel or motel” means “hotel” as that term is defined in ORS 699.005.

(19) “Informal dispute resolution” means, but is not limited to, consultation between the landlord or landlord’s agent and one or more tenants, or mediation utilizing the services of a third party.

(20) “Landlord” means the owner, lessor or sublessor of the dwelling unit or the building or premises of which it is a part. “Landlord” includes a person who is authorized by the owner, lessor or sublessor to manage the premises or to enter into a rental agreement.

(21) “Landlord’s agent” means a person who has oral or written authority, either express or implied, to act for or on behalf of a landlord.

(22) “Last month’s rent deposit” means a type of security deposit, however designated, the primary function of which is to secure the payment of rent for the last month of the tenancy.

(23) “Manufactured dwelling” means a residential trailer, a mobile home or a manufactured home as those terms are defined in ORS 446.003. “Manufactured dwelling” includes an accessory building or structure. “Manufactured dwelling” does not include a recreational vehicle.

(24) “Manufactured dwelling park” means a place where four or more manufactured dwellings are located, the primary purpose of which is to rent space or keep space for rent to any person for a charge or fee.

(25) “Marina” means a moorage of contiguous dwelling units that may be legally transferred as a single unit and are owned by one person where four or more floating homes are secured, the primary purpose of which is to rent space or keep space for rent to any person for a charge or fee.

(26) “Month-to-month tenancy” means a tenancy that automatically renews and continues for successive monthly periods on the same terms and conditions originally agreed to, or as revised by the parties, until terminated by one or both of the parties.

(27) “Organization” includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, and any other legal or commercial entity.

(28) “Owner” includes a mortgagee in possession and means one or more persons, jointly or severally, in whom is vested:

(a) All or part of the legal title to property; or

(b) All or part of the beneficial ownership and a right to present use and enjoyment of the premises.

(29) “Person” includes an individual or organization.

(30) “Premises” means:

(a) A dwelling unit and the structure of which it is a part and facilities and appurtenances therein;

(b) Grounds, areas and facilities held out for the use of tenants generally or the use of which is promised to the tenant; and

(31) “Prepaid rent” means any payment of money to the landlord for a rent obligation not yet due. In addition, “prepaid rent” means rent paid for a period extending beyond a termination date.

(32) “Recreational vehicle” has the meaning given that term in ORS 446.003.

(33) “Rent” means any payment to be made to the landlord under the rental agreement, periodic or otherwise, in exchange for the right of a tenant and any permitted pet to occupy a dwelling unit to the exclusion of others. “Rent” does not include security deposits, fees or utility or service charges as described in ORS 90.315 (4) and 90.532.

(34) “Rental agreement” means all agreements, written or oral, and valid rules and regulations adopted under ORS 90.262 or 90.510 (6) embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises. “Rental agreement” includes a lease. A rental agreement shall be either a week-to-week tenancy, month-to-month tenancy or fixed term tenancy.

(35) “Roomer” means a person occupying a dwelling unit that does not include a toilet and either a bathtub or a shower and a refrigerator, stove and kitchen, all provided by the landlord, and where one or more of these facilities are used in common by occupants in the structure.

(36) “Screening or admission criteria” means a written statement of any factors a landlord considers in deciding whether to accept or reject an applicant and any qualifications required for acceptance. “Screening or admission criteria” includes, but is not limited to, the rental history, character references, public records, criminal records, credit reports, credit references and incomes or resources of the applicant.

(37) “Security deposit” means a refundable payment or deposit of money, however designated, the primary function of which is to secure the performance of a rental agreement or any part of a rental agreement. “Security deposit” does not include a fee.

(38) “Sexual assault” has the meaning given that term in ORS 147.450.

(39) “Squatter” means a person occupying a dwelling unit who is not so entitled under a rental agreement or who is not authorized by the tenant to occupy that dwelling unit. “Squatter” does not include a tenant who holds over as described in ORS 90.427 (7).

(40) “Stalking” means the behavior described in ORS 163.732.

(41) “Statement of policy” means the summary explanation of information and facility policies to be provided to prospective and existing tenants under ORS 90.510.

(42) “Surrender” means an agreement, express or implied, as described in ORS 90.148 between a landlord and tenant to terminate a rental agreement that gave the tenant the right to occupy a dwelling unit.

(43) “Tenant”:

(a) Except as provided in paragraph (b) of this subsection:

(A) Means a person, including a roomer, entitled under a rental agreement to occupy a dwelling unit to the exclusion of others, including a dwelling unit owned, operated or controlled by a public housing authority.

(B) Means a minor, as defined and provided for in ORS 109.697.

(b) For purposes of ORS 90.505 to 90.840, means only a person who owns and occupies as a residence a manufactured dwelling or a floating home in a facility and persons residing with that tenant under the terms of the rental agreement.

(44) “Transient lodging” means a room or a suite of rooms.

(45) “Transient occupancy” means occupancy in transient lodging that has all of the following characteristics:

(a) Occupancy is charged on a daily basis and is not collected more than six days in advance;

(b) The lodging operator provides maid and linen service daily or every two days as part of the regularly charged cost of occupancy; and

(46) “Vacation occupancy” means occupancy in a dwelling unit, not including transient occupancy in a hotel or motel, that has all of the following characteristics:

(a) The occupant rents the unit for vacation purposes only, not as a principal residence;

(b) The occupant has a principal residence other than at the unit; and

(47) “Victim” means:

(a) The person against whom an incident related to domestic violence, sexual assault or stalking is perpetrated; or

(b) The parent or guardian of a minor household member against whom an incident related to domestic violence, sexual assault or stalking is perpetrated, unless the parent or guardian is the perpetrator.

(48) “Week-to-week tenancy” means a tenancy that has all of the following characteristics:

(a) Occupancy is charged on a weekly basis and is payable no less frequently than every seven days;

(b) There is a written rental agreement that defines the landlord’s and the tenant’s rights and responsibilities under this chapter; and

(c) There are no fees or security deposits, although the landlord may require the payment of an applicant screening charge, as provided in ORS 90.295. [Formerly 91.705; 1991 c.844 §3; 1993 c.369 §1; 1995 c.324 §1; 1995 c.559 §1; 1997 c.577 §1; 1999 c.676 §§7,7a; 2001 c.596 §27; 2003 c.378 §8; 2005 c.22 §57; 2005 c.41 §1; 2005 c.619 §15; 2007 c.508 §7; 2007 c.906 §6; 2009 c.431 §7; 2009 c.816 §16]

90.105 Short title. This chapter shall be known and may be cited as the “Residential Landlord and Tenant Act.” [Formerly 91.700]

90.110 Exclusions from application of this chapter. Unless created to avoid the application of this chapter, the following arrangements are not governed by this chapter:

(1) Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious or similar service, but not including residence in off-campus nondormitory housing.

(2) Occupancy of a dwelling unit for no more than 90 days by a purchaser prior to the scheduled closing of a real estate sale or by a seller following the closing of a sale, in either case as permitted under the terms of an agreement for sale of a dwelling unit or the property of which it is a part. The occupancy by a purchaser or seller described in this subsection may be terminated only pursuant to ORS 91.130. A tenant who holds but has not exercised an option to purchase the dwelling unit is not a purchaser for purposes of this subsection.

(3) Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization.

(4) Transient occupancy in a hotel or motel.

(5) Occupancy by a squatter.

(6) Vacation occupancy.

(7) Occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises. However, the occupancy by an employee as described in this subsection may be terminated only pursuant to ORS 91.120.

(8) Occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative.

(9) Occupancy under a rental agreement covering premises used by the occupant primarily for agricultural purposes. [Formerly 91.710; 1993 c.369 §2; 1997 c.577 §2; 1999 c.603 §6; 2001 c.596 §28]

90.113 Additional exclusion from application of chapter. Residence in a licensed program, facility or home described in ORS 430.306 to 430.375, 430.380, 430.385, 430.395, 430.397 to 430.401, 430.405 to 430.565, 430.570, 430.590, 443.400 to 443.455, 443.705 to 443.825 or 443.835 is not governed by this chapter. [2007 c.715 §2; 2009 c.595 §58]

90.115 Territorial application. This chapter applies to, regulates and determines rights, obligations and remedies under a rental agreement, wherever made, for a dwelling unit located within this state. [Formerly 91.715]

90.120 Applicability of other statutory lien, tenancy and rent provisions; applicability of ORS 90.100 to 90.465 and 90.505 to 90.840. (1) The provisions of ORS 87.152 to 87.212, 91.010 to 91.110, 91.130, 91.210 and 91.220 do not apply to the rights and obligations of landlords and tenants governed by this chapter.

(2) Any provisions of this chapter that reasonably apply only to the structure that is used as a home, residence or sleeping place do not apply to a manufactured dwelling, recreational vehicle or floating home where the tenant owns the manufactured dwelling, recreational vehicle or floating home but rents the space on which it is located.

(3) The provisions of ORS 90.505 to 90.840 apply only if:

(a) The tenant owns the manufactured dwelling or floating home;

(b) The tenant rents the space on which the dwelling or home is located; and

(4) ORS 90.512, 90.514, 90.516 and 90.518 apply to a converted rental space as defined in ORS 90.512 regardless of whether the converted rental space is in a facility.

(5) Residential tenancies for recreational vehicles and for manufactured dwellings and floating homes that are not subject to ORS 90.505 to 90.840 shall be subject to ORS 90.100 to 90.465. Tenancies described in this subsection include tenancies for:

(a) A recreational vehicle, located inside or outside of a facility, if the tenant owns or rents the vehicle;

(b) A manufactured dwelling or floating home, located inside or outside of a facility, if the tenant rents both the dwelling or home and the space; and

(c) A manufactured dwelling or floating home, located outside a facility, if the tenant owns the dwelling or home and rents the space. [Formerly 91.720; 1991 c.844 §28; 1995 c.559 §5; 1997 c.577 §2a; 1999 c.676 §8; 2005 c.41 §2]

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. [Formerly 91.725]

90.130 Obligation of good faith. Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement. [Formerly 91.730]

90.135 Unconscionability. (1) If the court, as a matter of law, finds:

(a) A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result; or

(b) A settlement in which a party waives or agrees to forgo a claim or right under this chapter or under a rental agreement was unconscionable when made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result.

(2) If unconscionability is put into issue by a party or by the court upon its own motion the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose and effect of the rental agreement or settlement to aid the court in making the determination. [Formerly 91.735]

90.140 Types of payments landlord may require or accept; written evidence of payment. (1) A landlord may require or accept the following types of payments:

(a) Applicant screening charges, pursuant to ORS 90.295;

(b) Deposits to secure the execution of a rental agreement, pursuant to ORS 90.297;

(d) Fees, pursuant to ORS 90.302;

(e) Rent, as defined in ORS 90.100;

(f) Prepaid rent, as defined in ORS 90.100;

(g) Utility or service charges, pursuant to ORS 90.315 (4), 90.534 or 90.536;

(h) Late charges or fees, pursuant to ORS 90.260; and

(i) Damages, for noncompliance with a rental agreement or ORS 90.325, under ORS 90.401 or as provided elsewhere in this chapter.

(2) A tenant who requests a writing that evidences the tenant’s payment is entitled to receive that writing from the landlord as a condition for making the payment. The writing may be a receipt, statement of the tenant’s account or other acknowledgment of the tenant’s payment. The writing must include the amount paid, the date of payment and information identifying the landlord or the rental property. If the tenant makes the payment by mail, deposit or a method other than in person and requests the writing, the landlord shall within a reasonable time provide the tenant with the writing in a manner consistent with ORS 90.150. [1997 c.577 §4; 1999 c.603 §7; 2001 c.596 §29; 2005 c.22 §58; 2005 c.391 §13; 2005 c.619 §16]

90.145 Tenant or applicant who conducts repairs, routine maintenance or cleaning services not employee of landlord; restrictions. (1) A tenant who occupies or an applicant who will occupy a dwelling unit and who conducts repairs, routine maintenance or cleaning services on that dwelling unit in exchange for a reduction in rent pursuant to a written or oral agreement with the landlord is not an employee of the landlord.

(2) A tenant or an applicant described in subsection (1) of this section may not conduct electrical or plumbing installation, maintenance or repair unless properly licensed under ORS 479.510 to 479.945 or ORS chapter 693. The tenant or applicant is not required to obtain a plumbing contractor license under ORS 447.040 to perform work under this section.

(3) Nothing in this section diminishes the obligations of a landlord to maintain the dwelling unit in a habitable condition under ORS 90.320 or 90.730.

(4) Any electrical or plumbing installation, maintenance or repair work performed by a tenant or an applicant under this section must comply with ORS 447.010 to 447.156 and 479.510 to 479.945. [1995 c.773 §2; 1999 c.676 §9; 2005 c.758 §6]

90.147 Delivery of possession. For the purposes of this chapter, delivery of possession occurs:

(1) From the landlord to the tenant, when the landlord gives actual notice to the tenant that the tenant has the right under a rental agreement to occupy the dwelling unit to the exclusion of others. The right to occupy may be implied by actions such as the landlord’s delivery of the keys to the dwelling unit; and

(2) From the tenant to the landlord at the termination of the tenancy, when:

(a) The tenant gives actual notice to the landlord that the tenant has relinquished any right to occupy the dwelling unit to the exclusion of others. Relinquishment of the right to occupy may be implied by actions such as the tenant’s return of the keys to the dwelling unit;

(b) After the expiration date of an outstanding termination of tenancy notice or the end of a term tenancy, the landlord reasonably believes under all the circumstances that the tenant has relinquished or no longer claims the right to occupy the dwelling unit to the exclusion of others; or

90.148 Landlord acts that imply acceptance of tenant abandonment or relinquishment of right to occupy. The surrender of a dwelling unit may be implied from the landlord’s acceptance of a tenant’s abandonment or relinquishment of the right to occupy. The landlord’s acceptance may be demonstrated by acts of the landlord that are inconsistent with the existence of the tenancy. A landlord’s receipt of the keys to the dwelling unit or a landlord’s reasonable efforts to mitigate the landlord’s damages by attempting to rent the dwelling unit to a new tenant shall not constitute acts inconsistent with the existence of the tenancy. Reasonable efforts to mitigate damages include preparing the unit for rental. [1999 c.603 §2]

Note: 90.148 was added to and made a part of ORS chapter 90 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

SERVICE OR DELIVERY OF NOTICES

90.150 Service or delivery of actual notice. When this chapter requires actual notice, service or delivery of that notice shall be executed by one or more of the following methods:

(1) Verbal notice that is given personally to the landlord or tenant or left on the landlord’s or tenant’s telephone answering device.

(2) Written notice that is personally delivered to the landlord or tenant, left at the landlord’s rental office, sent by facsimile to the landlord’s residence or rental office or to the tenant’s dwelling unit, or attached in a secure manner to the main entrance of the landlord’s residence or tenant’s dwelling unit.

(3) Written notice that is delivered by first class mail to the landlord or tenant. If the notice is mailed, the notice shall be considered served three days after the date the notice was mailed.

(4) Any other method reasonably calculated to achieve actual receipt of notice, as agreed to and described in a written rental agreement. [1995 c.559 §3; 1997 c.577 §5; 1999 c.603 §9; 2003 c.14 §33]

90.155 Service or delivery of written notice. (1) Except as provided in ORS 90.300, 90.425 and 90.675, where this chapter requires written notice, service or delivery of that written notice shall be executed by one or more of the following methods:

(a) Personal delivery to the landlord or tenant;

(b) First class mail to the landlord or tenant; or

(c) If a written rental agreement so provides, both first class mail and attachment to a designated location. In order for a written rental agreement to provide for mail and attachment service of written notices from the landlord to the tenant, the agreement must also provide for such service of written notices from the tenant to the landlord. Mail and attachment service of written notices shall be executed as follows:

(A) For written notices from the landlord to the tenant, the first class mail notice copy shall be addressed to the tenant at the premises and the second notice copy shall be attached in a secure manner to the main entrance to that portion of the premises of which the tenant has possession; and

(B) For written notices from the tenant to the landlord, the first class mail notice copy shall be addressed to the landlord at an address as designated in the written rental agreement and the second notice copy shall be attached in a secure manner to the landlord’s designated location, which shall be described with particularity in the written rental agreement, reasonably located in relation to the tenant and available at all hours.

(2) If a notice is served by mail, the minimum period for compliance or termination of tenancy, as appropriate, shall be extended by three days, and the notice shall include the extension in the period provided.

(3) A landlord or tenant may utilize alternative methods of notifying the other so long as the alternative method is in addition to one of the service methods described in subsection (1) of this section.

(4) Notwithstanding ORS 90.510 (4), after 30 days’ written notice, a landlord may unilaterally amend a rental agreement for a manufactured dwelling or floating home that is subject to ORS 90.505 to 90.840 to provide for service or delivery of written notices by mail and attachment service as provided by subsection (1)(c) of this section. [Formerly 90.910; 1997 c.577 §6; 2001 c.596 §29a]

90.160 Calculation of notice periods. (1) Notwithstanding ORCP 10 and not including the seven-day and four-day waiting periods provided in ORS 90.394, where there are references in this chapter to periods and notices based on a number of days, those days shall be calculated by consecutive calendar days, not including the initial day of service, but including the last day until midnight of that last day. Where there are references in this chapter to periods or notices based on a number of hours, those hours shall be calculated in consecutive clock hours, beginning immediately upon service.

(2) Notwithstanding subsection (1) of this section, for 72-hour or 144-hour nonpayment notices under ORS 90.394 that are served pursuant to ORS 90.155 (1)(c), the time period described in subsection (1) of this section begins at 11:59 p.m. the day the notice is both mailed and attached to the premises. The time period shall end 72 hours or 144 hours, as the case may be, after the time started to run at 11:59 p.m. [Formerly 90.402; 1997 c.577 §7; 2005 c.391 §14]

CONTENT OF AGREEMENTS

90.220 Terms and conditions of rental agreement; smoking policy; rent obligation and payment. (1) A landlord and a tenant may include in a rental agreement terms and conditions not prohibited by this chapter or other rule of law including rent, term of the agreement and other provisions governing the rights and obligations of the parties.

(2) The terms of a fixed term tenancy, including the amount of rent, may not be unilaterally amended by the landlord or tenant.

(3) The landlord shall provide the tenant with a copy of any written rental agreement and all amendments and additions thereto.

(4) Before the landlord enters into a new rental agreement with an applicant or accepts any payment from an applicant, the landlord shall provide the applicant with a written list of all deposits, fees and rent that are charged by the landlord. The landlord and applicant may agree to amend the written list before entering into the rental agreement. The list may be included in the written rental agreement. The written rental agreement must, at a minimum, include a description of the fees that the landlord may charge.

(5) Except as provided in this subsection, the rental agreement must include a disclosure of the smoking policy for the premises that complies with ORS 479.305. A disclosure of smoking policy is not required in a rental agreement subject to ORS 90.505 to 90.840 for space in a facility as defined in ORS 90.100.

(6) Notwithstanding ORS 90.245 (1), the parties to a rental agreement to which ORS 90.100 to 90.465 apply may include in the rental agreement a provision for informal dispute resolution.

(7) In absence of agreement, the tenant shall pay as rent the fair rental value for the use and occupancy of the dwelling unit.

(8) Except as otherwise provided by this chapter:

(a) Rent is payable without demand or notice at the time and place agreed upon by the parties. Unless otherwise agreed, rent is payable at the dwelling unit, periodic rent is payable at the beginning of any term of one month or less and otherwise in equal monthly or weekly installments at the beginning of each month or week, depending on whether the tenancy is month-to-month or week-to-week. Rent may not be considered to be due prior to the first day of each rental period. Rent may not be increased without a 30-day written notice thereof in the case of a month-to-month tenancy or a seven-day written notice thereof in the case of a week-to-week tenancy.

(b) If a rental agreement does not create a week-to-week tenancy, as defined in ORS 90.100, or a fixed term tenancy, the tenancy shall be a month-to-month tenancy.

(9) Except as provided by ORS 90.427 (7), a tenant is responsible for payment of rent until the earlier of:

(a) The date that a notice terminating the tenancy expires;

(b) The date that the tenancy terminates by its own terms;

(d) The date that the tenancy terminates as a result of the landlord failing to use reasonable efforts to rent the dwelling unit to a new tenant as provided under ORS 90.410 (3);

(e) The date when a new tenancy with a new tenant begins;

(f) Thirty days after delivery of possession without prior notice of termination of a month-to-month tenancy; or

(g) Ten days after delivery of possession without prior notice of termination of a week-to-week tenancy. [Formerly 90.240; 2009 c.127 §3; 2009 c.431 §10]

90.228 Notice of location in 100-year flood plain. (1) As used in this section, “100-year flood plain” means the level that flood waters may be expected to equal or exceed once each 100 years, as determined by the National Flood Insurance Program of the Federal Emergency Management Agency.

(2) If a dwelling unit is located in a 100-year flood plain, the landlord shall provide notice in the dwelling unit rental agreement that the dwelling unit is located within the flood plain.

(3) If a landlord fails to provide a notice required under this section, and the tenant of the dwelling unit suffers an uninsured loss due to flooding, the tenant may recover from the landlord the lesser of the actual damages for the uninsured loss or two months’ rent. [2009 c.306 §2]

Note: 90.228 was added to and made a part of ORS chapter 90 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

90.230 Rental agreements for occupancy of recreational vehicle in park; remedy for noncompliance; exception. (1) If a tenancy is for the occupancy of a recreational vehicle in a manufactured dwelling park, mobile home park or recreational vehicle park, all as defined in ORS 197.492, the landlord shall provide a written rental agreement for a month-to-month, week-to-week or fixed-term tenancy. The rental agreement must state:

(a) If applicable, that the tenancy may be terminated by the landlord under ORS 90.427 without cause upon 30 days’ written notice for a month-to-month tenancy or upon 10 days’ written notice for a week-to-week tenancy.

(b) That any accessory building or structure paid for or provided by the tenant belongs to the tenant and is subject to a demand by the landlord that the tenant remove the building or structure upon termination of the tenancy.

(c) That the tenancy is subject to the requirements of ORS 197.493 (1) for exemption from placement and occupancy restrictions.

(2) If a tenant described in subsection (1) of this section moves following termination of the tenancy by the landlord under ORS 90.427, and the landlord failed to provide the required written rental agreement before the beginning of the tenancy, the tenant may recover the tenant’s actual damages or twice the periodic rent, whichever is greater.

(3) If the occupancy fails at any time to comply with the requirements of ORS 197.493 (1) for exemption from placement and occupancy restrictions, and a state agency or local government requires the tenant to move as a result of the noncompliance, the tenant may recover the tenant’s actual damages or twice the periodic rent, whichever is greater. This subsection does not apply if the noncompliance was caused by the tenant.

(4) This section does not apply to a vacation occupancy. [2005 c.619 §14]

90.240 [Formerly 91.740; 1993 c.369 §3; 1995 c.559 §6; 1997 c.577 §8; 1999 c.603 §10; 2003 c.378 §9; renumbered 90.220 in 2005]

90.243 Qualifications for drug and alcohol free housing; “program of recovery” defined. (1) A dwelling unit qualifies as drug and alcohol free housing if:

(a)(A) For premises consisting of more than eight dwelling units, the dwelling unit is one of at least eight contiguous dwelling units on the premises that are designated by the landlord as drug and alcohol free housing dwelling units and that are each occupied or held for occupancy by at least one tenant who is a recovering alcoholic or drug addict and is participating in a program of recovery; or

(B) For premises consisting of eight or fewer dwelling units, the dwelling unit is one of at least four contiguous dwelling units on the premises that are designated by the landlord as drug and alcohol free housing dwelling units and that are each occupied or held for occupancy by at least one tenant who is a recovering alcoholic or drug addict and is participating in a program of recovery;

(b) The landlord is a nonprofit corporation incorporated pursuant to ORS chapter 65 or a housing authority created pursuant to ORS 456.055 to 456.235;

(A) A drug and alcohol free environment, covering all tenants, employees, staff, agents of the landlord and guests;

(B) Monitoring of the tenants for compliance with the requirements described in paragraph (d) of this subsection;

(D) Access to a specified program of recovery; and

(d) The rental agreement for the designated drug and alcohol free housing dwelling unit is in writing and includes the following provisions:

(A) That the dwelling unit is designated by the landlord as a drug and alcohol free housing dwelling unit;

(B) That the tenant may not use, possess or share alcohol, illegal drugs, controlled substances or prescription drugs without a medical prescription, either on or off the premises;

(C) That the tenant may not allow the tenant’s guests to use, possess or share alcohol, illegal drugs, controlled substances or prescription drugs without a medical prescription, on the premises;

(D) That the tenant shall participate in a program of recovery, which specific program is described in the rental agreement;

(E) That on at least a quarterly basis the tenant shall provide written verification from the tenant’s program of recovery that the tenant is participating in the program of recovery and that the tenant has not used alcohol or illegal drugs;

(F) That the landlord has the right to require the tenant to take a test for drug or alcohol usage promptly and at the landlord’s discretion and expense; and

(G) That the landlord has the right to terminate the tenant’s tenancy in the drug and alcohol free housing under ORS 90.392, 90.398 or 90.630 for noncompliance with the requirements described in this paragraph.

(2) A dwelling unit qualifies as drug and alcohol free housing despite the premises not having the minimum number of qualified dwelling units required by subsection (1)(a) of this section if:

(a) The premises are occupied but have not previously qualified as drug and alcohol free housing;

(b) The landlord designates certain dwelling units on the premises as drug and alcohol free dwelling units;

(c) The number of designated drug and alcohol free housing dwelling units meets the requirement of subsection (1)(a) of this section;

(d) When each designated dwelling unit becomes vacant, the landlord rents that dwelling unit to, or holds that dwelling unit for occupancy by, at least one tenant who is a recovering alcoholic or drug addict and is participating in a program of recovery and the landlord meets the other requirements of subsection (1) of this section; and

(e) The dwelling unit is one of the designated drug and alcohol free housing dwelling units.

(3) The failure by a tenant to take a test for drug or alcohol usage as requested by the landlord pursuant to subsection (1)(d)(F) of this section may be considered evidence of drug or alcohol use.

(4) As used in this section, “program of recovery” means a verifiable program of counseling and rehabilitation treatment services, including a written plan, to assist recovering alcoholics or drug addicts to recover from their addiction to alcohol or illegal drugs while living in drug and alcohol free housing. A “program of recovery” includes Alcoholics Anonymous, Narcotics Anonymous and similar programs. [1995 c.559 §7; 1997 c.577 §9; 1999 c.603 §11; 2003 c.378 §10; 2005 c.22 §59; 2005 c.391 §15]

90.245 Prohibited provisions in rental agreements; remedy. (1) A rental agreement may not provide that the tenant:

(a) Agrees to waive or forgo rights or remedies under this chapter;

(b) Authorizes any person to confess judgment on a claim arising out of the rental agreement;

(c) Agrees to the exculpation or limitation of any liability arising as a result of the other party’s willful misconduct or negligence or to indemnify the other party for that liability or costs connected therewith; or

(d) Agrees to pay liquidated damages, except as allowed under ORS 90.302 (2)(e).

(2) A provision prohibited by subsection (1) of this section included in a rental agreement is unenforceable. If a landlord deliberately uses a rental agreement containing provisions known by the landlord to be prohibited and attempts to enforce such provisions, the tenant may recover in addition to the actual damages of the tenant an amount up to three months’ periodic rent. [Formerly 91.745; 2009 c.431 §11]

90.250 Receipt of rent without obligation to maintain premises prohibited. A rental agreement, assignment, conveyance, trust deed or security instrument may not permit the receipt of rent free of the obligation to comply with ORS 90.320 (1) or 90.730. [Formerly 91.750; 1999 c.676 §10]

90.255 Attorney fees. 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. [Formerly 91.755]

90.260 Late rent payment charge or fee; restrictions; calculation. (1) A landlord may impose a late charge or fee, however designated, only if:

(a) The rent payment is not received by the fourth day of the weekly or monthly rental period for which rent is payable; and

(b) There exists a written rental agreement that specifies:

(A) The tenant’s obligation to pay a late charge on delinquent rent payments;

(B) The type and amount of the late charge, as described in subsection (2) of this section; and

(2) The amount of any late charge may not exceed:

(a) A reasonable flat amount, charged once per rental period. “Reasonable amount” means the customary amount charged by landlords for that rental market;

(b) A reasonable amount, charged on a per-day basis, beginning on the fifth day of the rental period for which rent is delinquent. This daily charge may accrue every day thereafter until the rent, not including any late charge, is paid in full, through that rental period only. The per-day charge may not exceed six percent of the amount described in paragraph (a) of this subsection; or

(c) Five percent of the periodic rent payment amount, charged once for each succeeding five-day period, or portion thereof, for which the rent payment is delinquent, beginning on the fifth day of that rental period and continuing and accumulating until that rent payment, not including any late charge, is paid in full, through that rental period only.

(3) In periodic tenancies, a landlord may change the type or amount of late charge by giving 30 days’ written notice to the tenant.

(4) A landlord may not deduct a previously imposed late charge from a current or subsequent rental period rent payment, thereby making that rent payment delinquent for imposition of a new or additional late charge or for termination of the tenancy for nonpayment under ORS 90.394.

(5) A landlord may charge simple interest on an unpaid late charge at the rate allowed for judgments pursuant to ORS 82.010 (2) and accruing from the date the late charge is imposed.

(6) Nonpayment of a late charge alone is not grounds for termination of a rental agreement for nonpayment of rent under ORS 90.394, but is grounds for termination of a rental agreement for cause under ORS 90.392 or 90.630 (1). A landlord may note the imposition of a late charge on a nonpayment of rent termination notice under ORS 90.394, so long as the notice states or otherwise makes clear that the tenant may cure the nonpayment notice by paying only the delinquent rent, not including any late charge, within the allotted time.

(7) A late charge includes an increase or decrease in the regularly charged periodic rent payment imposed because a tenant does or does not pay that rent by a certain date. [1989 c.506 §15; 1995 c.559 §8; 1997 c.249 §30; 1997 c.577 §9a; 1999 c.603 §12; 2005 c.391 §16; 2007 c.906 §32a]

90.262 Use and occupancy rules and regulations; adoption; enforceability; restrictions. (1) A landlord, from time to time, may adopt a rule or regulation, however described, concerning the tenant’s use and occupancy of the premises. It is enforceable against the tenant only if:

(a) Its purpose is to promote the convenience, safety or welfare of the tenants in the premises, preserve the landlord’s property from abusive use, or make a fair distribution of services and facilities held out for the tenants generally;

(b) It is reasonably related to the purpose for which it is adopted;

(d) It is sufficiently explicit in its prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant must or must not do to comply;

(e) It is not for the purpose of evading the obligations of the landlord; and

(f) The tenant has written notice of it at the time the tenant enters into the rental agreement, or when it is adopted.

(2) If a rule or regulation adopted after the tenant enters into the rental agreement works a substantial modification of the bargain, it is not valid unless the tenant consents to it in writing.

(3) If adopted, an occupancy guideline for a dwelling unit shall not be more restrictive than two people per bedroom and shall be reasonable. Reasonableness shall be determined on a case-by-case basis. Factors to be considered in determining reasonableness include, but are not limited to:

(a) The size of the bedrooms;

(b) The overall size of the dwelling unit; and

(4) As used in this section:

(a) “Bedroom” means a habitable room that:

(A) Is intended to be used primarily for sleeping purposes;

(B) Contains at least 70 square feet; and

(b) “Habitable room” means a space in a structure for living, sleeping, eating or cooking. Bathrooms, toilet compartments, closets, halls, storage or utility space and similar areas are not included. [Formerly 90.330]

90.263 Vehicle tags. A landlord may not require that a tenant display a nonremovable tag, sticker or other device on a motor vehicle that might reveal or indicate to the public the premises where the tenant resides. [1999 c.397 §2]

Note: 90.263 was added to and made a part of ORS chapter 90 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

90.265 Interest in alternative energy device installed by tenant. (1) An alternative energy device installed in a dwelling unit by a tenant with the landlord’s written permission is not a fixture in which the landlord has a legal interest, except as otherwise expressly provided in a written agreement between the landlord and tenant.

(2) As a condition to a grant of written permission referred to in subsection (1) of this section, a landlord may require a tenant to do one or more of the following:

(a) Provide a waiver of the landlord’s liability for any injury to the tenant or other installer resulting from the tenant’s or installer’s negligence in the installation of the alternative energy device;

(b) Secure a waiver of the right to a lien against the property of the landlord from each contractor, subcontractor, laborer and material supplier who would obtain the right to a lien when the tenant installs or causes the installation of the alternative energy device; or

(c) Post a bond or pay a deposit in an amount not to exceed the cost of restoring the premises to its condition at the time of installation of the alternative energy device.

(3) Nothing in this section:

(a) Authorizes the installation of an alternative energy device in a dwelling unit without the landlord’s written permission; or

(b) Limits a landlord’s right to recover damages and obtain injunctive relief as provided in ORS 90.401.

(4) As used in this section, “alternative energy device” has the meaning given that term in ORS 469.160. [Formerly 91.757; 1993 c.369 §32; 1995 c.559 §57; 1997 c.577 §10; 1999 c.603 §13; 2005 c.22 §60; 2005 c.391 §17]

TEMPORARY OCCUPANCY AGREEMENT

90.275 Temporary occupancy agreement; terms and conditions. (1) As provided under this section, a landlord may allow an individual to become a temporary occupant of the tenant’s dwelling unit as a guest of the tenant. To create a temporary occupancy, the landlord, tenant and proposed temporary occupant must enter into a written temporary occupancy agreement that describes the temporary occupancy relationship.

(2) The temporary occupant:

(a) Is not a tenant entitled to occupy the dwelling unit to the exclusion of others; and

(b) Does not have the rights of a tenant.

(3) The temporary occupancy agreement may be terminated by:

(a) The tenant without cause at any time; and

(b) The landlord only for cause that is a material violation of the temporary occupancy agreement.

(4) The temporary occupant does not have a right to cure a violation that causes a landlord to terminate the temporary occupancy agreement.

(5) Before entering into a temporary occupancy agreement, a landlord may screen the proposed temporary occupant for issues regarding conduct or for a criminal record. The landlord may not screen the proposed temporary occupant for credit history or income level.

(6) A temporary occupancy agreement:

(a) Shall expressly include the requirements of subsections (2) to (4) of this section;

(b) May provide that the temporary occupant is required to comply with any applicable rules for the premises; and

(7) The landlord, tenant and temporary occupant may extend or renew a temporary occupancy agreement or may enter into a new temporary occupancy agreement.

(8) A landlord or tenant is not required to give the temporary occupant written notice of the termination of a temporary occupancy agreement.

(9) The temporary occupant shall promptly vacate the dwelling unit if a landlord terminates a temporary occupancy agreement for material violation of the temporary occupancy agreement or if the temporary occupancy agreement ends by its terms. Except as provided in ORS 90.449, the landlord may terminate the tenancy of the tenant as provided under ORS 90.392 or 90.630 if the temporary occupant fails to promptly vacate the dwelling unit or if the tenant materially violates the temporary occupancy agreement.

(10) A temporary occupant shall be treated as a squatter if the temporary occupant continues to occupy the dwelling unit after a tenancy has ended or after the tenant revokes permission for the occupancy by terminating the temporary occupancy agreement.

(11)(a) A landlord may not enter into a temporary occupancy agreement for the purpose of evading landlord responsibilities under this chapter or to diminish the rights of an applicant or tenant under this chapter.

(b) A tenant may not become a temporary occupant in the tenant’s own dwelling unit.

(c) A tenancy may not consist solely of a temporary occupancy. Each tenancy must have at least one tenant. [2009 c.431 §6 and 2009 c.816 §15]

FEES AND DEPOSITS

90.295 Applicant screening charge; limitations; notice upon denial of tenancy; refund; remedies. (1) A landlord may require payment of an applicant screening charge solely to cover the costs of obtaining information about an applicant as the landlord processes the application for a rental agreement. This activity is known as screening, and includes but is not limited to checking references and obtaining a consumer credit report or tenant screening report. The landlord must provide the applicant with a receipt for any applicant screening charge.

(2) The amount of any applicant screening charge shall not be greater than the landlord’s average actual cost of screening applicants. Actual costs may include the cost of using a tenant screening company or a consumer credit reporting agency, and may include the reasonable value of any time spent by the landlord or the landlord’s agents in otherwise obtaining information on applicants. In any case, the applicant screening charge may not be greater than the customary amount charged by tenant screening companies or consumer credit reporting agencies for a comparable level of screening.

(3) A landlord may not require payment of an applicant screening charge unless prior to accepting the payment the landlord:

(a) Adopts written screening or admission criteria;

(b) Gives written notice to the applicant of:

(A) The amount of the applicant screening charge;

(B) The landlord’s screening or admission criteria;

(C) The process that the landlord typically will follow in screening the applicant, including whether the landlord uses a tenant screening company, credit reports, public records or criminal records or contacts employers, landlords or other references; and

(D) The applicant’s rights to dispute the accuracy of any information provided to the landlord by a screening company or credit reporting agency; and

(c) Gives actual notice to the applicant of an estimate, made to the best of the landlord’s ability at that time, of the approximate number of rental units of the type, and in the area, sought by the applicant that are, or within a reasonable future time will be, available to rent from that landlord. The estimate shall include the approximate number of applications previously accepted and remaining under consideration for those units. A good faith error by a landlord in making an estimate under this paragraph does not provide grounds for a claim under subsection (8) of this section.

(4) Regardless of whether a landlord requires payment of an applicant screening charge, if a landlord denies an application for a rental agreement by an applicant and that denial is based in whole or in part on a tenant screening company or consumer credit reporting agency report on that applicant, the landlord shall give the applicant actual notice of that fact at the same time that the landlord notifies the applicant of the denial. Unless written notice of the name and address of the screening company or credit reporting agency has previously been given, the landlord shall promptly give written notice to the applicant of the name and address of the company or agency that provided the report upon which the denial is based.

(5) Except as provided in subsection (4) of this section, a landlord need not disclose the results of an applicant screening or report to an applicant, with respect to information that is not required to be disclosed under the federal Fair Credit Reporting Act. A landlord may give to an applicant a copy of that applicant’s consumer report, as defined in the Fair Credit Reporting Act.

(6) Unless the applicant agrees otherwise in writing, a landlord may not require payment of an applicant screening charge when the landlord knows or should know that no rental units are available at that time or will be available within a reasonable future time.

(7) If a landlord requires payment of an applicant screening charge but fills the vacant rental unit before screening the applicant or does not conduct a screening of the applicant for any reason, the landlord must refund the applicant screening charge to the applicant within a reasonable time.

(8) The applicant may recover from the landlord the amount of any applicant screening charge paid, plus $100, if:

(a) The landlord fails to comply with this section and does not within a reasonable time accept the applicant’s application for a rental agreement; or

(b) The landlord does not conduct a screening of the applicant for any reason and fails to refund an applicant screening charge to the applicant within a reasonable time. [1993 c.369 §26; 1995 c.559 §10; 1997 c.577 §11; 1999 c.603 §14]

90.297 Prohibition on charging deposit or fee to enter rental agreement; exceptions; deposit allowed for securing execution of rental agreement; remedy. (1) Except as provided in ORS 90.295 and in this section, a landlord may not charge a deposit or fee, however designated, to an applicant who has applied to a landlord to enter a rental agreement for a dwelling unit.

(2) A landlord may charge a deposit, however designated, to an applicant for the purpose of securing the execution of a rental agreement, after approving the applicant’s application but prior to entering into a rental agreement. The landlord must give the applicant a written statement describing the terms of the agreement to execute a rental agreement and the conditions for refunding or retaining the deposit.

(a) If a rental agreement is executed, the landlord shall either apply the deposit toward the moneys due the landlord under the rental agreement or refund it immediately to the tenant.

(b) If a rental agreement is not executed due to a failure by the applicant to comply with the agreement to execute, the landlord may retain the deposit.

(c) If a rental agreement is not executed due to a failure by the landlord to comply with the agreement to execute, within four days the landlord shall return the deposit to the applicant either by making the deposit available to the applicant at the landlord’s customary place of business or by mailing the deposit by first class mail to the applicant.

(3) If a landlord fails to comply with this section, the applicant or tenant, as the case may be, may recover from the landlord the amount of any fee or deposit charged, plus $100. [1995 c.559 §11; 2001 c.596 §30]

90.300 Security deposits; prepaid rent. (1) As used in this section, “security deposit” includes any last month’s rent deposit.

(2) Except as otherwise provided in this section, a landlord may require the payment of a security deposit. The landlord shall provide a tenant with a receipt for any security deposit paid by the tenant. A security deposit or prepaid rent shall be held by the landlord for the tenant who is a party to the rental agreement. The claim of a tenant to the security deposit or prepaid rent shall be prior to the claim of any creditor of the landlord, including a trustee in bankruptcy. The holder of the landlord’s interest in the premises at the time of termination of the tenancy is responsible to the tenant for any security deposit or prepaid rent and is bound by this section.

(3) A landlord may not charge a tenant a pet security deposit for keeping a service animal or companion animal that a tenant with a disability requires as a reasonable accommodation under fair housing laws.

(4)(a) Except as otherwise provided in this subsection, a landlord may not change the rental agreement to require the payment of a new or increased security deposit during the first year after the tenancy has begun. Subject to subsection (3) of this section, an additional deposit may be required if the landlord and tenant agree to modify the terms and conditions of the rental agreement to permit a pet or for other cause and the additional deposit relates to that modification. This paragraph does not prevent the collection of a security deposit that was provided for under an initial rental agreement but remained unpaid at the time the tenancy began.

(b) If a landlord requires a new or increased security deposit after the first year of the tenancy, the landlord shall allow the tenant at least three months to pay that deposit.

(5) The landlord may claim all or part of the security deposit only if the security deposit was made for any or all of the purposes provided by subsection (6) of this section.

(6)(a) The landlord may claim from the security deposit only the amount reasonably necessary:

(A) To remedy the tenant’s defaults in the performance of the rental agreement including, but not limited to, unpaid rent; and

(B) To repair damages to the premises caused by the tenant, not including ordinary wear and tear.

(b) A landlord is not required to repair damage caused by the tenant in order to claim against the deposit for the cost to make the repair. Any labor costs assessed under this subsection for cleaning or repairs must be based on a reasonable hourly rate. The landlord may charge a reasonable hourly rate for the performance of cleaning or repair work by the landlord.

(A) Carpet cleaning, other than the use of a common vacuum cleaner, if:

(i) The cleaning is performed by use of a machine specifically designed for cleaning or shampooing carpets;

(ii) The carpet was cleaned immediately prior to the tenant taking possession; and

(iii) The written rental agreement provides that the landlord may deduct the cost of carpet cleaning regardless of whether the tenant cleans the carpet before delivery of possession as described in ORS 90.147.

(B) Loss of use of the dwelling unit during the performance of necessary cleaning or repairs, if the cleaning or repairs are performed in a timely manner.

(7) A landlord may not require that a security deposit or prepaid rent be required or forfeited to the landlord upon the failure of the tenant to maintain a tenancy for a minimum number of months in a month-to-month tenancy.

(8) Any last month’s rent deposit must be applied to the rent due for the last month of the tenancy:

(a) Upon either the landlord or tenant giving to the other a notice of termination, pursuant to this chapter, other than a notice of termination under ORS 90.394;

(b) Upon agreement by the landlord and tenant to terminate the tenancy; or

(9) Any portion of a last month’s rent deposit not applied as provided under subsection (8) of this section shall be accounted for and refunded as provided under subsections (11) to (13) of this section. Unless the tenant and landlord agree otherwise, a last month’s rent deposit shall not be applied to rent due for any period other than the last month of the tenancy. A last month’s rent deposit shall not operate to limit the amount of rent charged unless a written rental agreement provides otherwise.

(10) Upon termination of the tenancy, a landlord shall account for and refund to the tenant the unused balance of any prepaid rent not previously refunded to the tenant as required by ORS 90.380 and 105.120 (5)(b) or any other provision of this chapter, in the same manner as required for security deposits by this section. The landlord may claim from the remaining prepaid rent only the amount reasonably necessary to pay the tenant’s unpaid rent.

(11) In order to claim all or part of any prepaid rent or security deposit, within 31 days after the termination of the tenancy and delivery of possession the landlord shall give to the tenant a written accounting that states specifically the basis or bases of the claim. The landlord shall give a separate accounting for security deposits and for prepaid rent.

(12) The security deposit or prepaid rent or portion thereof not claimed in the manner provided by subsections (10) and (11) of this section shall be returned to the tenant not later than 31 days after the termination of the tenancy and delivery of possession to the landlord.

(13) The landlord shall give the written accounting as required by subsection (11) of this section or shall return the security deposit or prepaid rent as required by subsection (12) of this section by personal delivery or by first class mail.

(14) If a security deposit or prepaid rent secures a tenancy for a space for a tenant owned and occupied manufactured dwelling or floating home, whether or not in a facility, and the dwelling or home is abandoned as described in ORS 90.425 (2) or 90.675 (2), the 31-day period described in subsections (11) and (12) of this section commences on the earliest of:

(a) Waiver of the abandoned property process under ORS 90.425 (26) or 90.675 (22);

(b) Removal of the manufactured dwelling or floating home from the rented space;

(c) Destruction or other disposition of the manufactured dwelling or floating home under ORS 90.425 (10)(b) or 90.675 (10)(b); or

(d) Sale of the manufactured dwelling or floating home pursuant to ORS 90.425 (10)(a) or 90.675 (10)(a).

(15) If the landlord fails to comply with subsection (12) of this section or if the landlord in bad faith fails to return all or any portion of any prepaid rent or security deposit due to the tenant under this chapter or the rental agreement, the tenant may recover the money due in an amount equal to twice the amount:

(a) Withheld without a written accounting under subsection (11) of this section; or

(b) Withheld in bad faith.

(16)(a) A security deposit or prepaid rent in the possession of the landlord is not garnishable property, as provided in ORS 18.618.

(b) If a security deposit or prepaid rent is delivered to a garnishor in violation of ORS 18.618 (1)(b), the landlord that delivered the security deposit or prepaid rent to the garnishor shall allow the tenant at least 30 days after a copy of the garnishee response required by ORS 18.680 is delivered to the tenant under ORS 18.690 to restore the security deposit or prepaid rent. If the tenant fails to restore a security deposit or prepaid rent under the provisions of this paragraph before the tenancy terminates, and the landlord retains no security deposit or prepaid rent from the tenant after the garnishment, the landlord is not required to refund or account for the security deposit or prepaid rent under subsection (10) of this section.

(17) This section does not preclude the landlord or tenant from recovering other damages under this chapter. [Formerly 91.760; 1993 c.369 §4; 1995 c.559 §12; 1997 c.577 §13; 1999 c.603 §15; 2001 c.596 §31; 2003 c.658 §3; 2005 c.391 §3; 2007 c.496 §7; 2007 c.906 §37; 2009 c.431 §12]

90.302 Fees allowed for certain landlord expenses; accounting not required. (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.

(b) A dishonored check, pursuant to ORS 30.701 (5). The amount of the fee may not exceed the amount described in ORS 30.701 (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 (2).

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

(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 (2), 90.472 or 90.475. 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

(f) Noncompliance with written rules or policies. The fee may not exceed $50. A fee may be assessed under this paragraph only 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.

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

(D) Parking violations.

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

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

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

(5) Nonpayment of a fee is not grounds for termination of a rental agreement for nonpayment of rent under ORS 90.394, but is grounds for termination of a rental agreement for cause under ORS 90.392 or 90.630 (1).

(6) This section does not apply to:

(a) Attorney fees awarded pursuant to ORS 90.255;

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

(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. [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]

Note: Sections 16 and 17, chapter 431, Oregon Laws 2009, provide:

Sec. 16. Notwithstanding ORS 90.302 (1), a landlord may retain a fee charged before the effective date of this 2009 Act [January 1, 2010] at the beginning of the tenancy for an anticipated landlord expense. [2009 c.431 §16]

Sec. 17. The amendments to ORS 90.302 by section 13 of this 2009 Act apply to fees and charges for occurrences, abandonments, relinquishments and noncompliances:

(1) Occurring on or after the effective date of this 2009 Act [January 1, 2010] for fees or charges provided for in a month-to-month tenancy; and

(2) Occurring on or after the effective date of this 2009 Act for fees and charges provided for in a fixed-term tenancy that is entered into on or after the effective date of this 2009 Act. [2009 c.431 §17]

LANDLORD RIGHTS AND OBLIGATIONS

90.304 Statement of reasons for denial; remedy for noncompliance. (1) If a landlord requires an applicant to pay an applicant screening charge and the application is denied, or if an applicant makes a written request following the landlord’s denial of an application, the landlord must promptly provide the applicant with a written statement of one or more reasons for the denial.

(2) The landlord’s statement of reasons for denial required by subsection (1) of this section may consist of a form with one or more reasons checked off. The reasons may include, but are not limited to, the following:

(a) Rental information, including:

(A) Negative or insufficient reports from references or other sources.

(B) An unacceptable or insufficient rental history, such as the lack of a reference from a prior landlord.

(C) A prior action for possession under ORS 105.105 to 105.168 that resulted in a general judgment for the plaintiff or an action for possession that has not yet resulted in dismissal or general judgment.

(D) Inability to verify information regarding a rental history.

(b) Criminal records, including:

(A) An unacceptable criminal history.

(B) Inability to verify information regarding criminal history.

(A) Insufficient income.

(B) Negative information provided by a consumer credit reporting agency.

(d) Failure to meet other written screening or admission criteria.

(e) The dwelling unit has already been rented.

(3) If a landlord fails to comply with this section, the applicant may recover from the landlord $100. [2005 c.391 §31]

90.305 Disclosure of certain matters; retention of rental agreement; inspection of agreement. (1) The landlord shall disclose to the tenant in writing at or before the commencement of the tenancy the name and address of:

(a) The person authorized to manage the premises; and

(b) An owner of the premises or a person authorized to act for and on behalf of the owner for the purpose of service of process and receiving and receipting for notices and demands.

(2) The information required to be furnished by this section shall be kept current and this section extends to and is enforceable against any successor landlord, owner or manager.

(3) A person who is authorized to manage the premises, or to enter into a rental agreement, and fails to comply with subsection (1) of this section becomes an agent of each person who is a landlord for service of process and receiving and receipting for notices and demands.

(4)(a) A landlord shall retain a copy of each rental agreement at the resident manager’s office or at the address provided to the tenant under subsection (1)(a) of this section.

(b) A tenant may request to see the rental agreement and, within a reasonable time, the landlord shall make the agreement available for inspection. At the request of the tenant and upon payment of a reasonable charge, not to exceed the lesser of 25 cents per page or the actual copying costs, the landlord shall provide the tenant with a copy of the rental agreement. This subsection shall not diminish the landlord’s obligation to furnish the tenant an initial copy of the rental agreement and any amendments under ORS 90.220 (3). [Formerly 91.765; 1993 c.369 §5; 1999 c.603 §17; 2003 c.378 §11]

90.310 Disclosure of legal proceedings; tenant remedies for failure to disclose; liability of manager. (1) If at the time of the execution of a rental agreement for a dwelling unit in premises containing no more than four dwelling units the premises are subject to any of the following circumstances, the landlord shall disclose that circumstance to the tenant in writing before the execution of the rental agreement:

(a) Any outstanding notice of default under a trust deed, mortgage or contract of sale, or notice of trustee’s sale under a trust deed;

(b) Any pending suit to foreclose a mortgage, trust deed or vendor’s lien under a contract of sale;

(d) Any pending proceeding to foreclose a tax lien.

(2) If the tenant moves as a result of a circumstance that the landlord failed to disclose as required by subsection (1) of this section, the tenant may recover twice the actual damages or twice the monthly rent, whichever is greater, and all prepaid rent, in addition to any other remedy that the law may provide.

(3) This section shall not apply to premises managed by a court appointed receiver.

(4) A manager who has complied with ORS 90.305 shall not be liable for damages under this section if the manager had no knowledge of the circumstances that gave rise to a duty of disclosure under subsection (1) of this section. [Formerly 91.766; 1997 c.249 §31]

90.315 Utility or service payments; additional charges; responsibility for utility or service; remedies. (1) As used in this section, “utility or service” includes but is not limited to electricity, natural or liquid propane gas, oil, water, hot water, heat, air conditioning, cable television, direct satellite or other video subscription services, Internet access or usage, sewer service and garbage collection and disposal.

(2) The landlord shall disclose to the tenant in writing at or before the commencement of the tenancy any utility or service that the tenant pays directly to a utility or service provider that benefits, directly, the landlord or other tenants. A tenant’s payment for a given utility or service benefits the landlord or other tenants if the utility or service is delivered to any area other than the tenant’s dwelling unit.

(3) If the landlord knowingly fails to disclose those matters required under subsection (2) of this section, the tenant may recover twice the actual damages sustained or one month’s rent, whichever is greater.

(4)(a) Except for tenancies covered by ORS 90.505 to 90.840, if a written rental agreement so provides, a landlord may require a tenant to pay to the landlord a utility or service charge that has been billed by a utility or service provider to the landlord for utility or service provided directly to the tenant’s dwelling unit or to a common area available to the tenant as part of the tenancy. A utility or service charge that shall be assessed to a tenant for a common area must be described in the written rental agreement separately and distinctly from such a charge for the tenant’s dwelling unit. Unless the method of allocating the charges to the tenant is described in the tenant’s written rental agreement, the tenant may require that the landlord give the tenant a copy of the provider’s bill as a condition of paying the charges.

(b) Except as provided in this paragraph, a utility or service charge may only include the cost of the utility or service as billed to the landlord by the provider. A landlord may add an additional amount to a utility or service charge billed to the tenant if:

(A) The utility or service charge to which the additional amount is added is for cable television, direct satellite or other video subscription services or for Internet access or usage;

(B) The additional amount is not more than 10 percent of the utility or service charge billed to the tenant;

(C) The total of the utility or service charge and the additional amount is less than the typical periodic cost the tenant would incur if the tenant contracted directly with the provider for the cable television, direct satellite or other video subscription services or for Internet access or usage;

(D) The written rental agreement providing for the utility or service charge describes the additional amount separately and distinctly from the utility or service charge; and

(E) Any billing or notice from the landlord regarding the utility or service charge lists the additional amount separately and distinctly from the utility or service charge.

(c) A landlord may not require a tenant to agree to the amendment of an existing rental agreement, and may not terminate a tenant for refusing to agree to the amendment of a rental agreement, if the amendment would obligate the tenant to pay an additional amount for cable television, direct satellite or other video subscription services or for Internet access or usage as provided under paragraph (b) of this subsection.

(d) A utility or service charge, including any additional amount added pursuant to paragraph (b) of this subsection, is not rent or a fee. Nonpayment of a utility or service charge is not grounds for termination of a rental agreement for nonpayment of rent under ORS 90.394 but is grounds for termination of a rental agreement for cause under ORS 90.392.

(e) If a landlord fails to comply with paragraph (a), (b) or (c) of this subsection, the tenant may recover from the landlord an amount equal to one month’s periodic rent or twice the amount wrongfully charged to the tenant, whichever is greater.

(5)(a) If a tenant, under the rental agreement, is responsible for a utility or service and is unable to obtain the service prior to moving into the premises due to a nonpayment of an outstanding amount due by a previous tenant or the owner, the tenant may either:

(A) Pay the outstanding amount and deduct the amount from the rent;

(B) Enter into a mutual agreement with the landlord to resolve the lack of service; or

(b) If the tenancy terminates, the landlord shall return all moneys paid by the tenant as deposits, rent or fees within four days after termination.

(6) If a tenant, under the rental agreement, is responsible for a utility or service and is unable to obtain the service after moving into the premises due to a nonpayment of an outstanding amount due by a previous tenant or the owner, the tenant may either:

(a) Pay the outstanding amount and deduct the amount from the rent; or

(b) Terminate the rental agreement by giving the landlord actual notice 72 hours prior to the date of termination and the reason for the termination. The tenancy does not terminate if the landlord restores service or the availability of service during the 72 hours. If the tenancy terminates, the tenant may recover actual damages from the landlord resulting from the shutoff and the landlord shall return:

(A) Within four days after termination, all rent and fees; and

(B) All of the security deposit owed to the tenant under ORS 90.300.

(7) If a landlord, under the rental agreement, is responsible for a utility or service and the utility or service is shut off due to a nonpayment of an outstanding amount, the tenant may either:

(a) Pay the outstanding balance and deduct the amount from the rent; or

(b) Terminate the rental agreement by giving the landlord actual notice 72 hours prior to the date of termination and the reason for the termination. The tenancy does not terminate if the landlord restores service during the 72 hours. If the tenancy terminates, the tenant may recover actual damages from the landlord resulting from the shutoff and the landlord shall return:

(A) Within four days after termination, all rent prepaid for the month in which the termination occurs prorated from the date of termination or the date the tenant vacates the premises, whichever is later, and any other prepaid rent; and

(B) All of the security deposit owed to the tenant under ORS 90.300.

(8) If a landlord fails to return to the tenant the moneys owed as provided in subsection (5), (6) or (7) of this section, the tenant shall be entitled to twice the amount wrongfully withheld.

(9) This section does not preclude the tenant from pursuing any other remedies under this chapter. [Formerly 91.767; 1993 c.786 §2; 1995 c.559 §14; 1997 c.577 §16; 1999 c.603 §18; 2005 c.391 §19; 2009 c.816 §4a]

90.316 Carbon monoxide alarm. (1) As used in this section, “carbon monoxide alarm” and “carbon monoxide source” have the meanings given those terms in ORS 105.836.

(2) A landlord may not enter into a rental agreement creating a new tenancy in a dwelling unit that contains a carbon monoxide source or that is within a structure that contains a carbon monoxide source unless, at the time the tenant takes possession of the dwelling unit, the dwelling unit contains one or more properly functioning carbon monoxide alarms installed in compliance with State Fire Marshal rules and with any applicable requirements of the state building code. The landlord shall provide a new tenant with alarm testing instructions as described in ORS 90.317.

(3) If a carbon monoxide alarm is battery-operated or has a battery-operated backup system, the landlord shall supply working batteries for the alarm at the beginning of a new tenancy. [2009 c.591 §10]

Note: 90.316 becomes operative July 1, 2010, and applies to rental agreements that a landlord enters into on or after July 1, 2010. See sections 16 and 17, chapter 591, Oregon Laws 2009.

Note: See 105.844.

90.317 Repair or replacement of carbon monoxide alarm. (1) If a rental dwelling unit that is subject to ORS chapter 90 has a carbon monoxide source or is located within a structure having a carbon monoxide source, the landlord shall ensure that the dwelling unit has one or more carbon monoxide alarms installed in compliance with State Fire Marshal rules and the state building code. The landlord shall provide the tenant of the dwelling unit with a written notice containing instructions for testing of the alarms. The landlord shall provide the written notice to the tenant no later than at the time that the tenant first takes possession of the premises.

(2) If the landlord receives written notice from the tenant of a deficiency in a carbon monoxide alarm, other than dead batteries, the landlord shall repair or replace the alarm. Supplying and maintaining a carbon monoxide alarm required under this section is a habitable condition requirement under ORS 90.320. [2009 c.591 §5]

Note: 90.317 becomes operative April 1, 2011. See section 16, chapter 591, Oregon Laws 2009.

Note: 90.317 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 90 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

Note: See 105.844.

90.318 Criteria for landlord provision of certain recycling services. (1) In a city or the county within the urban growth boundary of a city that has implemented multifamily recycling service, a landlord who has five or more residential dwelling units on a single premises or five or more manufactured dwellings in a single facility shall at all times during tenancy provide to all tenants:

(a) A separate location for containers or depots for at least four principal recyclable materials or for the number of materials required to be collected under the residential on-route collection program, whichever is less, adequate to hold the reasonably anticipated volume of each material;

(b) Regular collection service of the source separated recyclable materials; and

(c) Notice at least once a year of the opportunity to recycle with a description of the location of the containers or depots on the premises and information about how to recycle. New tenants shall be notified of the opportunity to recycle at the time of entering into a rental agreement.

(2) As used in this section, “recyclable material” and “source separate” have the meaning given those terms in ORS 459.005. [1991 c.385 §16]

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 unhabitable 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;

(A) Under the control of the tenant or landlord and is capable of producing hot and cold running water;

(B) Furnished to appropriate fixtures;

(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 or the structure in which the dwelling unit is a part contains a carbon monoxide source as defined in ORS 105.836; 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.

(2) The landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only 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.

(3) Any provisions of this section that reasonably apply only to a structure that is used as a home, residence or sleeping place shall not apply to a manufactured dwelling, recreational vehicle or floating home where the tenant owns the manufactured dwelling, recreational vehicle or floating home, rents the space and, in the case of a dwelling or home, the space is not in a facility. Manufactured dwelling or floating home tenancies in which the tenant owns the dwelling or home and rents space in a facility shall be governed by ORS 90.730, not by this section. [Formerly 91.770; 1993 c.369 §6; 1995 c.559 §15; 1997 c.249 §32; 1997 c.577 §17; 1999 c.307 §20; 1999 c.676 §11; 2009 c.591 §12]

Note: The amendments to 90.320 by section 12, chapter 591, Oregon Laws 2009, become operative July 1, 2010, and apply to rental agreements that a landlord enters into on or after July 1, 2010. See sections 16 and 17, chapter 591, Oregon Laws 2009. The text that is operative until July 1, 2010, is set forth for the user’s convenience.

90.320. (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 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;

(A) Under the control of the tenant or landlord and is capable of producing hot and cold running water;

(B) Furnished to appropriate fixtures;

(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;

(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;

(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.

(2) The landlord and tenant may agree in writing that the tenant is to perform specified repairs, maintenance tasks and minor remodeling only 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.

90.322 Landlord or agent access to premises; remedies. (1) A landlord or, to the extent provided in this section, a landlord’s agent may enter into the tenant’s dwelling unit or any portion of the premises under the tenant’s exclusive control in order to inspect the premises, make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, perform agreed yard maintenance or grounds keeping or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers or contractors. The right of access of the landlord or landlord’s agent is limited as follows:

(a) A landlord or landlord’s agent may enter upon the premises under the tenant’s exclusive control not including the dwelling unit without consent of the tenant and without notice to the tenant, for the purpose of serving notices required or permitted under this chapter, the rental agreement or any provision of applicable law.

(b) In case of an emergency, a landlord may enter the dwelling unit or any portion of the premises under a tenant’s exclusive control without consent of the tenant, without notice to the tenant and at any time. “Emergency” includes but is not limited to a repair problem that, unless remedied immediately, is likely to cause serious damage to the premises. If a landlord makes an emergency entry in the tenant’s absence, the landlord shall give the tenant actual notice within 24 hours after the entry, and the notice shall include the fact of the entry, the date and time of the entry, the nature of the emergency and the names of the persons who entered.

(c) If the tenant requests repairs or maintenance in writing, the landlord or landlord’s agent, without further notice, may enter upon demand, in the tenant’s absence or without the tenant’s consent, for the purpose of making the requested repairs until the repairs are completed. The tenant’s written request may specify allowable times. Otherwise, the entry must be at a reasonable time. The authorization to enter provided by the tenant’s written request expires after seven days, unless the repairs are in progress and the landlord or landlord’s agent is making a reasonable effort to complete the repairs in a timely manner. If the person entering to do the repairs is not the landlord, upon request of the tenant, the person must show the tenant written evidence from the landlord authorizing that person to act for the landlord in making the repairs.

(d) A landlord and tenant may agree that the landlord or the landlord’s agent may enter the dwelling unit and the premises without notice at reasonable times for the purpose of showing the premises to a prospective buyer, provided that the agreement:

(A) Is executed at a time when the landlord is actively engaged in attempts to sell the premises;

(B) Is reflected in a writing separate from the rental agreement and signed by both parties; and

(e)(A) If a written agreement requires the landlord to perform yard maintenance or grounds keeping for the premises:

(i) A landlord and tenant may agree that the landlord or landlord’s agent may enter for that purpose upon the premises under the tenant’s exclusive control not including the dwelling unit, without notice to the tenant, at reasonable times and with reasonable frequency. The terms of the right of entry must be described in the rental agreement or in a separate written agreement.

(ii) A tenant may deny consent for a landlord or landlord’s agent to enter upon the premises pursuant to this paragraph if the entry is at an unreasonable time or with unreasonable frequency. The tenant must assert the denial by giving actual notice of the denial to the landlord or landlord’s agent prior to, or at the time of, the attempted entry.

(B) As used in this paragraph:

(i) “Yard maintenance or grounds keeping” includes, but is not limited to, weeding, mowing grass and pruning trees and shrubs.

(ii) “Unreasonable time” refers to a time of day, day of the week or particular time that conflicts with the tenant’s reasonable and specific plans to use the premises.

(f) In all other cases, unless there is an agreement between the landlord and the tenant to the contrary regarding a specific entry, the landlord shall give the tenant at least 24 hours’ actual notice of the intent of the landlord to enter and the landlord or landlord’s agent may enter only at reasonable times. The landlord or landlord’s agent may not enter if the tenant, after receiving the landlord’s notice, denies consent to enter. The tenant must assert this denial of consent by giving actual notice of the denial to the landlord or the landlord’s agent or by attaching a written notice of the denial in a secure manner to the main entrance to that portion of the premises or dwelling unit of which the tenant has exclusive control, prior to or at the time of the attempt by the landlord or landlord’s agent to enter.

(2) A landlord may not abuse the right of access or use it to harass the tenant. A tenant may not unreasonably withhold consent from the landlord to enter.

(3) This section does not apply to tenancies consisting of a rental of space in a facility for a manufactured dwelling or floating home under ORS 90.505 to 90.840.

(4) If a tenancy consists of rented space for a manufactured dwelling or floating home that is owned by the tenant, but the tenancy is not subject to ORS 90.505 to 90.840 because the space is not in a facility, this section shall allow access only to the rented space and not to the dwelling or home.

(5) A landlord has no other right of access except:

(a) Pursuant to court order;

(b) As permitted by ORS 90.410 (2); or

(6) If a landlord is required by a governmental agency to enter a dwelling unit or any portion of the premises under a tenant’s exclusive control, but the landlord fails to gain entry after a good faith effort in compliance with this section, the landlord may not be found in violation of any state statute or local ordinance due to the failure.

(7) If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement under ORS 90.392 and take possession as provided in ORS 105.105 to 105.168. In addition, the landlord may recover actual damages.

(8) If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but that have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the reoccurrence of the conduct or may terminate the rental agreement pursuant to ORS 90.360 (1). In addition, the tenant may recover actual damages not less than an amount equal to one week’s rent in the case of a week-to-week tenancy or one month’s rent in all other cases. [Formerly 90.335; 1997 c.577 §18; 1999 c.603 §19; 1999 c.676 §12; 2005 c.391 §20]

TENANT OBLIGATIONS

90.325 Tenant duties. (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. [Formerly 91.775; 1993 c.369 §7; 1995 c.559 §16; 1999 c.307 §21; 1999 c.603 §20; 2009 c.591 §13]

90.330 [Formerly 91.780; 1991 c.852 §1; 1995 c.559 §17; renumbered 90.262 in 1995]

90.335 [Formerly 91.785; 1995 c.559 §18; renumbered 90.322 in 1995]

90.340 Occupancy of premises as dwelling unit only; notice of tenant absence. Unless otherwise agreed, the tenant shall occupy the dwelling unit only as a dwelling unit. The rental agreement may require that the tenant give actual notice to the landlord of any anticipated extended absence from the premises in excess of seven days no later than the first day of the extended absence. [Formerly 91.790; 1995 c.559 §19]

TENANT REMEDIES

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. [Formerly 91.800; 1993 c.369 §8; 1995 c.559 §20; 1997 c.577 §19; 1999 c.603 §21; 1999 c.676 §13]

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.

(8) Any provisions of this section that reasonably apply only to a structure that is used as a home, residence or sleeping place does not apply to a manufactured dwelling, recreational vehicle or floating home if the tenant owns the manufactured dwelling, recreational vehicle or floating home and rents the space. [Formerly 91.805; 1995 c.559 §21; 1997 c.577 §20; 1999 c.603 §22; 1999 c.676 §14; 2007 c.508 §8]

90.367 Application of security deposit or prepaid rent after notice of foreclosure. A tenant who receives actual notice that the property that is the subject of the tenant’s rental agreement with a landlord is in foreclosure may apply the tenant’s security deposit or prepaid rent to the tenant’s obligation to the landlord. The tenant must notify the landlord in writing that the tenant intends to do so. [2009 c.510 §4]

Note: 90.367 was added to and made a part of ORS chapter 90 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

90.368 Repair of minor habitability defect. (1) As used in this section, “minor habitability defect”:

(a) Means a defect that may reasonably be repaired for not more than $300, such as the repair of leaky plumbing, stopped up toilets or faulty light switches.

(b) Does not mean the presence of mold, radon, asbestos or lead-based paint.

(2) If, contrary to ORS 90.320, the landlord fails to repair a minor habitability defect, the tenant may cause the repair of the defect and deduct from the tenant’s subsequent rent obligation the actual and reasonable cost of the repair work, not to exceed $300.

(3)(a) Prior to causing a repair under subsection (2) of this section, the tenant shall give the landlord written notice:

(A) Describing the minor habitability defect; and

(B) Stating the tenant’s intention to cause the repair of the defect and deduct the cost of the repair from a subsequent rent obligation if the landlord fails to make the repair by a specified date.

(b) The specified date for repair contained in a written notice given to a landlord under this subsection must be at least seven days after the date the notice is given to the landlord.

(c) If the landlord fails to make the repair by the specified date, the tenant may use the remedy provided by subsection (2) of this section.

(d) Service or delivery of the required written notice shall be made as provided under ORS 90.155.

(4)(a) Any repair work performed under this section must be performed in a workmanlike manner and be in compliance with state statutes, local ordinances and the state building code.

(b) The landlord may specify the people to perform the repair work if the landlord’s specifications are reasonable and do not diminish the tenant’s rights under this section.

(d) To deduct the repair cost from the rent, the tenant must provide to the landlord a written statement, prepared by the person who made the repair, showing the actual cost of the repair.

(5) A tenant may not cause the repair of a defect under this section if:

(a) Within the time specified in the notice, the landlord substantially repairs the defect;

(b) After the time specified in the notice, but before the tenant causes the repair to be made, the landlord substantially repairs the defect;

(d) The defect was caused by a deliberate or negligent act or omission of the tenant or of a person on the premises with the tenant’s consent;

(e) The tenant knew of the defect for more than six months before giving notice under this section; or

(f) The tenant has previously used the remedy provided by this section for the same occurrence of the defect.

(6) If the tenant proceeds under this section, the tenant may not proceed under ORS 90.360 (1) as to that breach, but may use any other available remedy in addition to the remedy provided by this section. [2007 c.508 §2]

90.370 Tenant counterclaims in action by landlord for possession or rent. (1)(a) In an action for possession based upon nonpayment of the rent or in an action for rent when the tenant is in possession, the tenant may counterclaim for any amount, not in excess of the jurisdictional limits of the court in which the action is brought, that the tenant may recover under the rental agreement or this chapter, provided that the tenant must prove that prior to the filing of the landlord’s action the landlord reasonably had or should have had knowledge or had received actual notice of the facts that constitute the tenant’s counterclaim.

(b) In the event the tenant counterclaims, the court at the landlord’s or tenant’s request may order the tenant to pay into court all or part of the rent accrued and thereafter accruing, and shall determine the amount due to each party. The party to whom a net amount is owed shall be paid first from the money paid into court, and shall be paid the balance by the other party. The court may at any time release money paid into court to either party if the parties agree or if the court finds such party to be entitled to the sum so released. If no rent remains due after application of this section and unless otherwise agreed between the parties, a judgment shall be entered for the tenant in the action for possession.

(2) In an action for rent when the tenant is not in possession, the tenant may counterclaim as provided in subsection (1) of this section but is not required to pay any rent into court.

(3) If the tenant does not comply with an order to pay rent into the court as provided in subsection (1) of this section, the tenant shall not be permitted to assert a counterclaim in the action for possession.

(4) If the total amount found due to the tenant on any counterclaims is less than any rent found due to the landlord, and the tenant retains possession solely because the tenant paid rent into court under subsection (1) of this section, no attorney fees shall be awarded to the tenant unless the tenant paid at least the balance found due to the landlord into court no later than the commencement of the trial.

(5) When a tenant is granted a continuance for a longer period than two days, and has not been ordered to pay rent into court under subsection (1) of this section, the tenant shall be ordered to pay rent into court under ORS 105.140 (2). [Formerly 91.810; 1993 c.369 §9; 1995 c.559 §22]

90.375 Effect of unlawful ouster or exclusion; willful diminution of services. If a landlord unlawfully removes or excludes the tenant from the premises, seriously attempts or seriously threatens unlawfully to remove or exclude the tenant from the premises or willfully diminishes or seriously attempts or seriously threatens unlawfully to diminish services to the tenant by interrupting or causing the interruption of heat, running water, hot water, electric or other essential service, the tenant may obtain injunctive relief to recover possession or may terminate the rental agreement and recover an amount up to two months’ periodic rent or twice the actual damages sustained by the tenant, whichever is greater. If the rental agreement is terminated the landlord shall return all security deposits and prepaid rent recoverable under ORS 90.300. The tenant need not terminate the rental agreement, obtain injunctive relief or recover possession to recover damages under this section. [Formerly 91.815; 1993 c.369 §10; 1995 c.559 §23; 1997 c.577 §21]

90.380 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 or 90.730. 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 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.

(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 to 105.168.

(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; 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; 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]

90.385 Retaliatory conduct by landlord prohibited; tenant remedies and defenses; action for possession in certain cases. (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;

(B) Laws or regulations concerning the delivery of mail; or

(b) The tenant has made any complaint to the landlord that is in good faith and related to the tenancy;

(d) The tenant has testified against the landlord in any judicial, administrative or legislative proceeding;

(e) The tenant successfully defended an action for possession brought by the landlord within the previous six months except if the tenant was successful in defending the action only because:

(A) The termination notice by the landlord was not served or delivered in the manner required by ORS 90.155; or

(B) The period provided by the termination notice was less than that required by the statute upon which the notice relied to terminate the tenancy; or

(f) The tenant has performed or expressed intent to perform any other act for the purpose of asserting, protecting or invoking the protection of any right secured to tenants under any federal, state or local law.

(2) As used in subsection (1) of this section, “decreasing services” includes:

(a) Unreasonably restricting the availability of or placing unreasonable burdens on the use of common areas or facilities by tenant associations or tenants meeting to establish a tenant organization; and

(b) Intentionally and unreasonably interfering with and substantially impairing the enjoyment or use of the premises by the tenant.

(3) If the landlord acts in violation of subsection (1) of this section the tenant is entitled to the remedies provided in ORS 90.375 and has a defense in any retaliatory action against the tenant for possession.

(4) Notwithstanding subsections (1) and (3) of this section, a landlord may bring an action for possession if:

(a) The complaint by the tenant was made to the landlord or an agent of the landlord in an unreasonable manner or at an unreasonable time or was repeated in a manner having the effect of unreasonably harassing the landlord. A determination whether the manner, time or effect of a complaint was unreasonable shall include consideration of all related circumstances preceding or contemporaneous to the complaint;

(b) The violation of the applicable building or housing code was caused primarily by lack of reasonable care by the tenant or other person in the household of the tenant or upon the premises with the consent of the tenant;

(d) Compliance with the applicable building or housing code requires alteration, remodeling or demolition which would effectively deprive the tenant of use of the dwelling unit.

(5) For purposes of this section, a complaint made by another on behalf of a tenant is considered a complaint by the tenant.

(6) For the purposes of subsection (4)(c) of this section, a tenant who has paid rent into court pursuant to ORS 90.370 shall not be considered to be in default in rent.

(7) The maintenance of an action under subsection (4) of this section does not release the landlord from liability under ORS 90.360 (2). [Formerly 91.865; 1995 c.559 §25; 1997 c.303 §1; 1999 c.603 §23]

90.390 Discrimination against tenant or applicant; tenant defense. (1) A landlord may not discriminate against a tenant in violation of local, state or federal law, including ORS 346.630, 346.660, 346.690, 659A.145 and 659A.421.

(2) If the tenant can prove that the landlord violated subsection (1) of this section, the tenant has a defense in any discriminatory action brought by the landlord against the tenant for possession, unless the tenant is in default in rent.

(3) A tenant may prove a landlord’s discrimination in violation of ORS 659A.145 or 659A.421 by demonstrating that a facially neutral housing policy has a disparate adverse impact, as described in ORS 659A.425, on members of a protected class.

(4) A landlord may not discriminate against an applicant solely because the applicant was a defendant in an action for possession pursuant to ORS 105.105 to 105.168 that was dismissed or that resulted in general judgment for the defendant prior to the application. This subsection does not apply if the prior action has not resulted in a dismissal or general judgment at the time of the application. If the landlord knowingly acts in violation of this subsection, the applicant may recover actual damages or $200, whichever is greater. [1993 c.369 §24; 1997 c.577 §22; 2003 c.378 §12; 2005 c.391 §32; 2007 c.903 §14; 2008 c.36 §3]

LANDLORD REMEDIES

90.392 Termination of rental agreement by landlord for cause; tenant right to cure violation. (1) Except as provided in this chapter, after delivery of written notice a landlord may terminate the rental agreement for cause and take possession as provided in ORS 105.105 to 105.168, unless the tenant cures the violation as provided in this section.

(2) Causes for termination under this section are:

(a) Material violation by the tenant of the rental agreement. For purposes of this paragraph, material violation of the rental agreement includes, but is not limited to, the nonpayment of a late charge under ORS 90.260 or a utility or service charge under ORS 90.315.

(b) Material violation by the tenant of ORS 90.325.

(3) The notice must:

(a) Specify the acts and omissions constituting the violation;

(b) Except as provided in subsection (5)(a) of this section, state that the rental agreement will terminate upon a designated date not less than 30 days after delivery of the notice; and

(c) If the tenant can cure the violation as provided in subsection (4) of this section, state that the violation can be cured, describe at least one possible remedy to cure the violation and designate the date by which the tenant must cure the violation.

(4)(a) If the violation described in the notice can be cured by the tenant by a change in conduct, repairs, payment of money or otherwise, the rental agreement does not terminate if the tenant cures the violation by the designated date. The designated date must be:

(A) At least 14 days after delivery of the notice; or

(B) If the violation is conduct that was a separate and distinct act or omission and is not ongoing, no earlier than the date of delivery of the notice as provided in ORS 90.155. For purposes of this paragraph, conduct is ongoing if the conduct is constant or persistent or has been sufficiently repetitive over time that a reasonable person would consider the conduct to be ongoing.

(b) If the tenant does not cure the violation, the rental agreement terminates as provided in the notice.

(5)(a) If the cause of a written notice delivered under subsection (1) of this section is substantially the same act or omission that constituted a prior violation for which notice was given under this section within the previous six months, the designated termination date stated in the notice must be not less than 10 days after delivery of the notice and no earlier than the designated termination date stated in the previously given notice. The tenant does not have a right to cure this subsequent violation.

(b) A landlord may not terminate a rental agreement under this subsection if the only violation is a failure to pay the current month’s rent.

(6) When a tenancy is a week-to-week tenancy, the notice period in:

(a) Subsection (3)(b) of this section changes from 30 days to seven days;

(b) Subsection (4)(a)(A) of this section changes from 14 days to four days; and

(7) The termination of a tenancy for a manufactured dwelling or floating home space in a facility under ORS 90.505 to 90.840 is governed by ORS 90.630 and not by this section. [2005 c.391 §7]

90.394 Termination of rental agreement for failure to pay rent. The landlord may terminate the rental agreement for nonpayment of rent and take possession as provided in ORS 105.105 to 105.168, as follows:

(1) When the tenancy is a week-to-week tenancy, by delivering to the tenant at least 72 hours’ written notice of nonpayment and the landlord’s intention to terminate the rental agreement if the rent is not paid within that period. The landlord shall give this notice no sooner than on the fifth day of the rental period, including the first day the rent is due.

(2) For all tenancies other than week-to-week tenancies, by delivering to the tenant:

(a) At least 72 hours’ written notice of nonpayment and the landlord’s intention to terminate the rental agreement if the rent is not paid within that period. The landlord shall give this notice no sooner than on the eighth day of the rental period, including the first day the rent is due; or

(b) At least 144 hours’ written notice of nonpayment and the landlord’s intention to terminate the rental agreement if the rent is not paid within that period. The landlord shall give this notice no sooner than on the fifth day of the rental period, including the first day the rent is due.

(3) The notice described in this section must also specify the amount of rent that must be paid and the date and time by which the tenant must pay the rent to cure the nonpayment of rent.

(4) Payment by a tenant who has received a notice under this section is timely if mailed to the landlord within the period of the notice unless:

(a) The notice is served on the tenant:

(A) By personal delivery as provided in ORS 90.155 (1)(a); or

(B) By first class mail and attachment as provided in ORS 90.155 (1)(c);

(b) A written rental agreement and the notice expressly state that payment is to be made at a specified location that is either on the premises or at a place where the tenant has made all previous rent payments in person; and

90.396 Acts or omissions justifying termination 24 hours after notice. (1) Except as provided in subsection (2) of this section, after at least 24 hours’ written notice specifying the acts and omissions constituting the cause and specifying the date and time of the termination, the landlord may terminate the rental agreement and take possession as provided in ORS 105.105 to 105.168, if:

(a) The tenant, someone in the tenant’s control or the tenant’s pet seriously threatens to inflict substantial personal injury, or inflicts any substantial personal injury, upon a person on the premises other than the tenant;

(b) The tenant or someone in the tenant’s control recklessly endangers a person on the premises other than the tenant by creating a serious risk of substantial personal injury;

(c) The tenant, someone in the tenant’s control or the tenant’s pet inflicts any substantial personal injury upon a neighbor living in the immediate vicinity of the premises;

(d) The tenant or someone in the tenant’s control intentionally inflicts any substantial damage to the premises or the tenant’s pet inflicts substantial damage to the premises on more than one occasion;

(e)(A) The tenant intentionally provided substantial false information on the application for the tenancy within the past year;

(B) The false information was with regard to a criminal conviction of the tenant that would have been material to the landlord’s acceptance of the application; and

(f) The tenant, someone in the tenant’s control or the tenant’s pet commits any act that is outrageous in the extreme, on the premises or in the immediate vicinity of the premises. For purposes of this paragraph, an act is outrageous in the extreme if the act is not described in paragraphs (a) to (e) of this subsection, but is similar in degree and is one that a reasonable person in that community would consider to be so offensive as to warrant termination of the tenancy within 24 hours, considering the seriousness of the act or the risk to others. An act that is outrageous in the extreme is more extreme or serious than an act that warrants a 30-day termination under ORS 90.392. Acts that are “outrageous in the extreme” include, but are not limited to, the following acts by a person:

(A) Prostitution or promotion of prostitution, as described in ORS 167.007 and 167.012;

(B) Manufacture, delivery or possession of a controlled substance, as described in ORS 475.005, but not including:

(i) The medical use of marijuana in compliance with ORS 475.300 to 475.346;

(ii) Possession of, or delivery for no consideration of, less than one avoirdupois ounce of marijuana as described in ORS 475.860 (3) or 475.864 (3); or

(iii) Possession of prescription drugs;

(D) Burglary as described in ORS 164.215 and 164.225.

(2) If the cause for a termination notice given pursuant to subsection (1) of this section is based upon the acts of the tenant’s pet, the tenant may cure the cause and avoid termination of the tenancy by removing the pet from the premises prior to the end of the notice period. The notice must describe the right of the tenant to cure the cause. If the tenant returns the pet to the premises at any time after having cured the violation, the landlord, after at least 24 hours’ written notice specifying the subsequent presence of the offending pet, may terminate the rental agreement and take possession as provided in ORS 105.105 to 105.168. The tenant does not have a right to cure this subsequent violation.

(3) For purposes of subsection (1) of this section, someone is in the tenant’s control if that person enters or remains on the premises with the tenant’s permission or consent after the tenant reasonably knows or should know of that person’s act or likelihood to commit any act of the type described in subsection (1) of this section.

(4) An act can be proven to be outrageous in the extreme even if the act is one that does not violate a criminal statute. Notwithstanding the references to criminal statutes in subsection (1)(f) of this section, the landlord’s burden of proof in an action for possession under subsection (1) of this section is the civil standard of proof by a preponderance of the evidence.

(5) If a good faith effort by a landlord to terminate the tenancy under subsection (1)(f) of this section and to recover possession of the rental unit under ORS 105.105 to 105.168 fails by decision of the court, the landlord may not be found in violation of any state statute or local ordinance requiring the landlord to remove that tenant upon threat of fine, abatement or forfeiture as long as the landlord continues to make a good faith effort to terminate the tenancy. [2005 c.391 §9; 2007 c.71 §23]

90.398 Termination of rental agreement for drug or alcohol violations. (1) If a tenant living for less than two years in drug and alcohol free housing uses, possesses or shares alcohol, illegal drugs, controlled substances or prescription drugs without a medical prescription, the landlord may deliver a written notice to the tenant terminating the tenancy for cause and take possession as provided in ORS 105.105 to 105.168. The notice must specify the acts constituting the drug or alcohol violation and state that the rental agreement will terminate in not less than 48 hours after delivery of the notice, at a specified date and time. The notice must also state that the tenant can cure the drug or alcohol violation by a change in conduct or otherwise within 24 hours after delivery of the notice.

(2) If the tenant cures the violation within the 24-hour period, the rental agreement does not terminate. If the tenant does not cure the violation within the 24-hour period, the rental agreement terminates as provided in the notice.

(3) If substantially the same act that constituted a prior drug or alcohol violation of which notice was given reoccurs within six months, the landlord may terminate the rental agreement upon at least 24 hours’ written notice specifying the violation and the date and time of termination of the rental agreement. The tenant does not have a right to cure this subsequent violation. [2005 c.391 §10]

90.400 [Formerly 91.820; 1993 c.369 §12; 1995 c.559 §26; 1997 c.577 §23; 1999 c.603 §24; 1999 c.676 §15; 2001 c.596 §33; 2003 c.378 §13; 2005 c.22 §61; 2005 c.708 §42; repealed by 2005 c.391 §39]

90.401 Remedies available to landlord. Except as provided in this chapter:

(1) A landlord may pursue any one or more of the remedies set forth in ORS 90.392, 90.394, 90.396, 90.398, 90.403 and 90.405, simultaneously or sequentially.

(2) In addition to the remedies provided in ORS 90.392, 90.394, 90.396 and 90.398, a landlord may recover damages and obtain injunctive relief for any noncompliance by the tenant with the rental agreement or ORS 90.325 or 90.740. [2005 c.391 §11]

90.402 [1993 c.369 §25; 1995 c.559 §27; renumbered 90.160 in 1995]

90.403 Taking possession of premises from unauthorized possessor. (1) If an unauthorized person is in possession of the premises, after at least 24 hours’ written notice specifying the cause and the date and time by which the person must vacate, a landlord may take possession as provided in ORS 105.105 to 105.168 if:

(a) The tenant has vacated the premises;

(b) The rental agreement with the tenant prohibited subleasing or allowing another person to occupy the premises without the written permission of the landlord; and

(2) Service of notice under this section does not create a right of tenancy for the person in possession of the premises. [2005 c.391 §12]

90.405 Effect of tenant keeping unpermitted pet. (1) If the tenant, in violation of the rental agreement, keeps on the premises a pet capable of causing damage to persons or property, the landlord may deliver a written notice specifying the violation and stating that the tenancy will terminate upon a date not less than 10 days after the delivery of the notice unless the tenant removes the pet from the premises prior to the termination date specified in the notice. If the pet is not removed by the date specified, the tenancy shall terminate and the landlord may take possession in the manner provided in ORS 105.105 to 105.168.

(2) For purposes of this section, “a pet capable of causing damage to persons or property” means an animal that, because of the nature, size or behavioral characteristics of that particular animal or of that breed or type of animal generally, a reasonable person might consider to be capable of causing personal injury or property damage, including but not limited to, water damage from medium or larger sized fish tanks or other personal injury or property damage arising from the environment in which the animal is kept.

(3) If substantially the same act that constituted a prior noncompliance of which notice was given under subsection (1) of this section recurs within six months, the landlord may terminate the rental agreement upon at least 10 days’ written notice specifying the breach and the date of termination of the rental agreement.

(4) This section shall not apply to any tenancy governed by ORS 90.505 to 90.840. [Formerly 91.822; 1995 c.559 §28; 1999 c.603 §25]

90.410 Effect of tenant failure to give notice of absence; absence; abandonment. (1) If the rental agreement requires the tenant to give actual notice to the landlord of an anticipated extended absence in excess of seven days as permitted by ORS 90.340 and the tenant willfully fails to do so, the landlord may recover actual damages from the tenant.

(2) During any absence of the tenant in excess of seven days, the landlord may enter the dwelling unit at times reasonably necessary.

(3) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it for a fair rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, the rental agreement terminates as of the date of the new tenancy. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord knows or should know of the abandonment. If the tenancy is from month to month or week to week, the term of the rental agreement for this purpose is deemed to be a month or a week, as the case may be. [Formerly 91.825; 1993 c.369 §13; 1995 c.559 §29; 1999 c.603 §26]

90.412 Waiver of termination of tenancy. (1) As used in this section and ORS 90.414 and 90.417, “rent” does not include funds paid under the United States Housing Act of 1937 (42 U.S.C. 1437f).

(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, 90.398, 90.405 or 90.630.

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

(A) Disrepair or deterioration of the manufactured dwelling or floating home pursuant to ORS 90.632; or

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

(d) The termination is under ORS 90.396.

(e) 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 (1); or

(5) 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.

(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]

90.414 Acts not constituting waiver of termination of tenancy; delivery of rent refund. (1) If a notice of termination has been given by the landlord or the tenant, the following do not waive the right of the landlord to terminate on the notice and do not reinstate the tenancy:

(a) Except when the notice is a nonpayment of rent termination notice under ORS 90.394, the acceptance of rent if:

(A) The rent is prorated to the termination date specified in the notice; or

(B) The landlord refunds at least the unused balance of the rent prorated for the period beyond the termination date within 10 days after receiving the rent payment.

(b) Except if the termination is for cause under ORS 90.392, 90.398, 90.405, 90.630 or 90.632, the acceptance of rent for a rental period that extends beyond the termination date in the notice, if the landlord refunds at least the unused balance of the rent for the period beyond the termination date within 10 days after the end of the remedy or correction period described in the applicable notice.

(c) If the termination is for cause under ORS 90.392, 90.398, 90.405, 90.630 or 90.632 and proceedings have commenced under ORS 105.105 to 105.168 to recover possession of the premises based on the termination:

(A) The acceptance of rent for a period beyond the expiration of the notice of termination during which the tenant remains in possession if:

(i) The landlord notifies the tenant in writing in, or after the service of, the notice of termination for cause that the acceptance of rent while an action for possession is pending will not waive the right to terminate under the notice; and

(ii) The rent does not cover a period that extends beyond the date the rent payment is accepted.

(B) Service of a nonpayment of rent termination notice under ORS 90.394.

(2) The following do not waive the right of the landlord to terminate on a notice of termination given by the landlord or the tenant and do not reinstate a tenancy:

(a) The acceptance of a last month’s rent deposit collected at the beginning of the tenancy, whether or not the deposit covers a period beyond a termination date.

(b) The acceptance of rent distributed under a court order releasing money that was paid into the court as provided under ORS 90.370 (1).

(3) When a landlord must refund rent under this section, the refund shall be made to the tenant or other payer by personal delivery or first class mail and 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 §28]

90.415 [Formerly 91.830; 1991 c.62 §1; 1995 c.559 §30; 1997 c.577 §24; 1999 c.603 §27; 1999 c.676 §16; 2001 c.596 §34; 2003 c.658 §4; 2005 c.22 §62; 2005 c.391 §21; repealed by 2007 c.906 §30]

90.417 Duty to pay rent; effect of acceptance of partial rent. (1) A tenant’s duty regarding rent payments is to tender to the landlord an offer of the full amount of rent owed within the time allowed by law and by the rental agreement provisions regarding payment. A landlord may refuse to accept a rent tender that is for less than the full amount of rent owed or that is untimely.

(2) A landlord may accept a partial payment of rent. The acceptance of a partial payment of rent in a manner consistent with subsection (3) of this section does not constitute a waiver under ORS 90.412 (2)(b) of the landlord’s right to terminate the tenancy under ORS 90.394 for nonpayment of the balance of the rent owed.

(3) A landlord and tenant may by written agreement provide that monthly rent shall be paid in regular installments of less than a month pursuant to a schedule specified in the agreement. Installment rent payments described in this subsection are not partial payment of rent for purposes of this section.

(4) The acceptance of a partial payment of rent waives the right of the landlord to terminate the tenant’s rental agreement under ORS 90.394 for nonpayment of rent unless:

(a)(A) The landlord accepted the partial payment of rent before the landlord gave a nonpayment of rent termination notice under ORS 90.394 based on the tenant’s agreement to pay the balance by a time certain and the tenant does not pay the balance of the rent as agreed;

(B) The landlord’s notice of termination is served no earlier than it would have been permitted under ORS 90.394 had no rent been accepted; and

(C) The notice permits the tenant to avoid termination of the tenancy for nonpayment of rent by paying the balance within 72 hours or 144 hours, as the case may be, or by any date to which the parties agreed, whichever is later; or

(b) The landlord accepted a partial payment of rent after giving a nonpayment of rent termination notice under ORS 90.394 and entered into a written agreement with the tenant that the acceptance does not constitute waiver. The agreement may provide that the landlord may terminate the rental agreement and take possession as provided in ORS 105.105 to 105.168 without serving a new notice under ORS 90.394 if the tenant fails to pay the balance of the rent by a time certain.

(5) Notwithstanding any acceptance of a partial payment of rent under subsection (4) of this section, the tenant continues to owe the landlord the unpaid balance of the rent. [2007 c.906 §29]

90.420 Enforceability of landlord liens; distraint for rent abolished. (1) A lien or security interest on behalf of the landlord in the tenant’s household goods is not enforceable unless perfected before October 5, 1973.

(2) Distraint for rent is abolished. [Formerly 91.835]

90.425 Disposition of personal property abandoned by tenant; notice; sale; limitation on landlord liability; tax cancellation; storage agreements; hazardous property. (1) As used in this section:

(a) “Current market value” means the amount in cash, as determined by the county assessor, that could reasonably be expected to be paid for a manufactured dwelling or floating home by an informed buyer to an informed seller, each acting without compulsion in an arm’s-length transaction occurring on the assessment date for the tax year or on the date of a subsequent reappraisal by the county assessor.

(b) “Dispose of the personal property” means that, if reasonably appropriate, the landlord may throw away the property or may give it without consideration to a nonprofit organization or to a person unrelated to the landlord. The landlord may not retain the property for personal use or benefit.

(c) “Goods” includes those goods left inside a recreational vehicle, manufactured dwelling or floating home or left upon the rental space outside a recreational vehicle, manufactured dwelling or floating home, whether the recreational vehicle, dwelling or home is located inside or outside of a facility.

(d) “Lienholder” means any lienholder of an abandoned recreational vehicle, manufactured dwelling or floating home, if the lien is of record or the lienholder is actually known to the landlord.

(e) “Of record” means:

(A) For a recreational vehicle that is not a manufactured structure as defined in ORS 446.561, that a security interest has been properly recorded with the Department of Transportation pursuant to ORS 802.200 (1)(a)(A) and 803.097.

(B) For a manufactured dwelling or recreational vehicle that is a manufactured structure as defined in ORS 446.561, that a security interest has been properly recorded for the manufactured dwelling or recreational vehicle in the records of the Department of Consumer and Business Services pursuant to ORS 446.611 or on a certificate of title issued by the Department of Transportation prior to May 1, 2005.

(C) For a floating home, that a security interest has been properly recorded with the State Marine Board pursuant to ORS 830.740 to 830.755 for a home registered and titled with the board pursuant to ORS 830.715.

(f) “Owner” means any owner of an abandoned recreational vehicle, manufactured dwelling or floating home, if different from the tenant and either of record or actually known to the landlord.

(g) “Personal property” means goods, vehicles and recreational vehicles and includes manufactured dwellings and floating homes not located in a facility. “Personal property” does not include manufactured dwellings and floating homes located in a facility and therefore subject to being stored, sold or disposed of as provided under ORS 90.675.

(2) A landlord may not store, sell or dispose of abandoned personal property except as provided by this section. This section governs the rights and obligations of landlords, tenants and any lienholders or owners in any personal property abandoned or left upon the premises by the tenant or any lienholder or owner in the following circumstances:

(a) The tenancy has ended by termination or expiration of a rental agreement or by relinquishment or abandonment of the premises and the landlord reasonably believes under all the circumstances that the tenant has left the personal property upon the premises with no intention of asserting any further claim to the premises or to the personal property;

(b) The tenant has been absent from the premises continuously for seven days after termination of a tenancy by a court order that has not been executed; or

(3) Prior to selling or disposing of the tenant’s personal property under this section, the landlord must give a written notice to the tenant that must be:

(a) Personally delivered to the tenant; or

(b) Sent by first class mail addressed and mailed to the tenant at:

(A) The premises;

(B) Any post-office box held by the tenant and actually known to the landlord; and

(4)(a) In addition to the notice required by subsection (3) of this section, in the case of an abandoned recreational vehicle, manufactured dwelling or floating home, a landlord shall also give a copy of the notice described in subsection (3) of this section to:

(A) Any lienholder of the recreational vehicle, manufactured dwelling or floating home;

(B) Any owner of the recreational vehicle, manufactured dwelling or floating home;

(D) The assessor of the county where the manufactured dwelling or floating home is located.

(b) The landlord shall give the notice copy required by this subsection by personal delivery or first class mail, except that for any lienholder, mail service must be both by first class mail and by certified mail with return receipt requested.

(A) Actually known to the landlord;

(B) Of record; and

(C) Provided to the landlord by the lienholder in a written notice that identifies the personal property subject to the lien and that was sent to the landlord by certified mail with return receipt requested within the preceding five years. The notice must identify the personal property by describing the physical address of the property.

(5) The notice required under subsection (3) of this section must state that:

(a) The personal property left upon the premises is considered abandoned;

(b) The tenant or any lienholder or owner must contact the landlord by a specified date, as provided in subsection (6) of this section, to arrange for the removal of the abandoned personal property;

(c) The personal property is stored at a place of safekeeping, except that if the property includes a manufactured dwelling or floating home, the dwelling or home must be stored on the rented space;

(d) The tenant or any lienholder or owner, except as provided by subsection (18) of this section, may arrange for removal of the personal property by contacting the landlord at a described telephone number or address on or before the specified date;

(e) The landlord shall make the personal property available for removal by the tenant or any lienholder or owner, except as provided by subsection (18) of this section, by appointment at reasonable times;

(f) If the personal property is considered to be abandoned pursuant to subsection (2)(a) or (b) of this section, the landlord may require payment of removal and storage charges, as provided by subsection (7)(d) of this section, prior to releasing the personal property to the tenant or any lienholder or owner;

(g) If the personal property is considered to be abandoned pursuant to subsection (2)(c) of this section, the landlord may not require payment of storage charges prior to releasing the personal property;

(h) If the tenant or any lienholder or owner fails to contact the landlord by the specified date, or after that contact, fails to remove the personal property within 30 days for recreational vehicles, manufactured dwellings and floating homes or 15 days for all other personal property, the landlord may sell or dispose of the personal property. If the landlord reasonably believes that the personal property will be eligible for disposal pursuant to subsection (10)(b) of this section and the landlord intends to dispose of the property if the property is not claimed, the notice shall state that belief and intent; and

(i) If the personal property includes a recreational vehicle, manufactured dwelling or floating home and if applicable, there is a lienholder or owner that has a right to claim the recreational vehicle, dwelling or home, except as provided by subsection (18) of this section.

(6) For purposes of subsection (5) of this section, the specified date by which a tenant, lienholder or owner must contact a landlord to arrange for the disposition of abandoned personal property is:

(a) For abandoned recreational vehicles, manufactured dwellings or floating homes, not less than 45 days after personal delivery or mailing of the notice; or

(b) For all other abandoned personal property, not less than five days after personal delivery or eight days after mailing of the notice.

(7) After notifying the tenant as required by subsection (3) of this section, the landlord:

(a) Shall store any abandoned manufactured dwelling or floating home on the rented space and shall exercise reasonable care for the dwelling or home;

(b) Shall store all other abandoned personal property of the tenant, including goods left inside a recreational vehicle, manufactured dwelling or floating home or left upon the rented space outside a recreational vehicle, dwelling or home, in a place of safekeeping and shall exercise reasonable care for the personal property, except that the landlord may:

(A) Promptly dispose of rotting food; and

(B) Allow an animal control agency to remove any abandoned pets or livestock. If an animal control agency will not remove the abandoned pets or livestock, the landlord shall exercise reasonable care for the animals given all the circumstances, including the type and condition of the animals, and may give the animals to an agency that is willing and able to care for the animals, such as a humane society or similar organization;

(c) Except for manufactured dwellings and floating homes, may store the abandoned personal property at the dwelling unit, move and store it elsewhere on the premises or move and store it at a commercial storage company or other place of safekeeping; and

(d) Is entitled to reasonable or actual storage charges and costs incidental to storage or disposal, including any cost of removal to a place of storage. In the case of an abandoned manufactured dwelling or floating home, the storage charge may be no greater than the monthly space rent last payable by the tenant.

(8) If a tenant, lienholder or owner, upon the receipt of the notice provided by subsection (3) or (4) of this section or otherwise, responds by actual notice to the landlord on or before the specified date in the landlord’s notice that the tenant, lienholder or owner intends to remove the personal property from the premises or from the place of safekeeping, the landlord must make that personal property available for removal by the tenant, lienholder or owner by appointment at reasonable times during the 15 days or, in the case of a recreational vehicle, manufactured dwelling or floating home, 30 days following the date of the response, subject to subsection (18) of this section. If the personal property is considered to be abandoned pursuant to subsection (2)(a) or (b) of this section, but not pursuant to subsection (2)(c) of this section, the landlord may require payment of removal and storage charges, as provided in subsection (7)(d) of this section, prior to allowing the tenant, lienholder or owner to remove the personal property. Acceptance by a landlord of such payment does not operate to create or reinstate a tenancy or create a waiver pursuant to ORS 90.412 or 90.417.

(9) Except as provided in subsections (18) to (20) of this section, if the tenant, lienholder or owner of a recreational vehicle, manufactured dwelling or floating home does not respond within the time provided by the landlord’s notice, or the tenant, lienholder or owner does not remove the personal property within the time required by subsection (8) of this section or by any date agreed to with the landlord, whichever is later, the tenant’s, lienholder’s or owner’s personal property is conclusively presumed to be abandoned. The tenant and any lienholder or owner that have been given notice pursuant to subsection (3) or (4) of this section shall, except with regard to the distribution of sale proceeds pursuant to subsection (13) of this section, have no further right, title or interest to the personal property and may not claim or sell the property.

(10) If the personal property is presumed to be abandoned under subsection (9) of this section, the landlord then may:

(a) Sell the personal property at a public or private sale, provided that prior to the sale of a recreational vehicle, manufactured dwelling or floating home:

(A) The landlord may seek to transfer ownership of record of the personal property by complying with the requirements of the appropriate state agency; and

(B) The landlord shall:

(i) Place a notice in a newspaper of general circulation in the county in which the recreational vehicle, manufactured dwelling or floating home is located. The notice shall state:

(I) That the recreational vehicle, manufactured dwelling or floating home is abandoned;

(II) The tenant’s and owner’s name, if of record or actually known to the landlord;

(III) The address and any space number where the recreational vehicle, manufactured dwelling or floating home is located, and any plate, registration or other identification number for a recreational vehicle or floating home noted on the certificate of title, if actually known to the landlord;

(IV) Whether the sale is by private bidding or public auction;

(V) Whether the landlord is accepting sealed bids and, if so, the last date on which bids will be accepted; and

(VI) The name and telephone number of the person to contact to inspect the recreational vehicle, manufactured dwelling or floating home;

(ii) At a reasonable time prior to the sale, give a copy of the notice required by sub-subparagraph (i) of this subparagraph to the tenant and to any lienholder and owner, by personal delivery or first class mail, except that for any lienholder, mail service must be by first class mail with certificate of mailing;

(iii) Obtain an affidavit of publication from the newspaper to show that the notice required under sub-subparagraph (i) of this subparagraph ran in the newspaper at least one day in each of two consecutive weeks prior to the date scheduled for the sale or the last date bids will be accepted; and

(iv) Obtain written proof from the county that all property taxes and assessments on the manufactured dwelling or floating home have been paid or, if not paid, that the county has authorized the sale, with the sale proceeds to be distributed pursuant to subsection (13) of this section;

(b) Destroy or otherwise dispose of the personal property if the landlord determines that:

(A) For a manufactured dwelling or floating home, the current market value of the property is $8,000 or less as determined by the county assessor; or

(B) For all other personal property, the reasonable current fair market value is $500 or less or so low that the cost of storage and conducting a public sale probably exceeds the amount that would be realized from the sale; or

(c) Consistent with paragraphs (a) and (b) of this subsection, sell certain items and destroy or otherwise dispose of the remaining personal property.

(11)(a) A public or private sale authorized by this section must:

(A) For a recreational vehicle, manufactured dwelling or floating home, be conducted consistent with the terms listed in subsection (10)(a)(B)(i) of this section. Every aspect of the sale including the method, manner, time, place and terms must be commercially reasonable; or

(B) For all other personal property, be conducted under the provisions of ORS 79.0610.

(b) If there is no buyer at a sale of a manufactured dwelling or floating home, the personal property is considered to be worth $8,000 or less, regardless of current market value, and the landlord shall destroy or otherwise dispose of the personal property.

(12) Notwithstanding ORS 446.155 (1) and (2), unless a landlord intentionally misrepresents the condition of a manufactured dwelling or floating home, the landlord is not liable for the condition of the dwelling or home to:

(a) A buyer of the dwelling or home at a sale pursuant to subsection (10)(a) of this section, with or without consideration; or

(b) A person or nonprofit organization to whom the landlord gives the dwelling or home pursuant to subsection (1)(b), (10)(b) or (11)(b) of this section.

(13)(a) The landlord may deduct from the proceeds of the sale:

(A) The reasonable or actual cost of notice, storage and sale; and

(B) Unpaid rent.

(b) If the sale was of a manufactured dwelling or floating home, after deducting the amounts listed in paragraph (a) of this subsection, the landlord shall remit the remaining proceeds, if any, to the county tax collector to the extent of any unpaid property taxes and assessments owed on the dwelling or home.

(c) If the sale was of a recreational vehicle, manufactured dwelling or floating home, after deducting the amounts listed in paragraphs (a) and (b) of this subsection, if applicable, the landlord shall remit the remaining proceeds, if any, to any lienholder to the extent of any unpaid balance owed on the lien on the recreational vehicle, dwelling or home.

(d) After deducting the amounts listed in paragraphs (a), (b) and (c) of this subsection, if applicable, the landlord shall remit to the tenant or owner the remaining proceeds, if any, together with an itemized accounting.

(e) If the tenant or owner cannot after due diligence be found, the landlord shall deposit the remaining proceeds with the county treasurer of the county in which the sale occurred. If not claimed within three years, the deposited proceeds revert to the general fund of the county and are available for general purposes.

(14) The county tax collector shall cancel all unpaid property taxes and assessments owed on a manufactured dwelling or floating home, as provided under ORS 311.790, only under one of the following circumstances:

(a) The landlord disposes of the manufactured dwelling or floating home after a determination described in subsection (10)(b) of this section.

(b) There is no buyer of the manufactured dwelling or floating home at a sale described under subsection (11) of this section.

(c)(A) There is a buyer of the manufactured dwelling or floating home at a sale described under subsection (11) of this section;

(B) The current market value of the manufactured dwelling or floating home is $8,000 or less; and

(C) The proceeds of the sale are insufficient to satisfy the unpaid property taxes and assessments owed on the dwelling or home after distribution of the proceeds pursuant to subsection (13) of this section.

(d)(A) The landlord buys the manufactured dwelling or floating home at a sale described under subsection (11) of this section;

(B) The current market value of the manufactured dwelling or floating home is more than $8,000;

(C) The proceeds of the sale are insufficient to satisfy the unpaid property taxes and assessments owed on the manufactured dwelling or floating home after distribution of the proceeds pursuant to subsection (13) of this section; and

(D) The landlord disposes of the manufactured dwelling or floating home.

(15) The landlord is not responsible for any loss to the tenant, lienholder or owner resulting from storage of personal property in compliance with this section unless the loss was caused by the landlord’s deliberate or negligent act. In the event of a deliberate and malicious violation, the landlord is liable for twice the actual damages sustained by the tenant, lienholder or owner.

(16) Complete compliance in good faith with this section shall constitute a complete defense in any action brought by a tenant, lienholder or owner against a landlord for loss or damage to such personal property disposed of pursuant to this section.

(17) If a landlord does not comply with this section:

(a) The tenant is relieved of any liability for damage to the premises caused by conduct that was not deliberate, intentional or grossly negligent and for unpaid rent and may recover from the landlord up to twice the actual damages sustained by the tenant;

(b) A lienholder or owner aggrieved by the noncompliance may recover from the landlord the actual damages sustained by the lienholder or owner. ORS 90.255 does not authorize an award of attorney fees to the prevailing party in any action arising under this paragraph; and

(c) A county tax collector aggrieved by the noncompliance may recover from the landlord the actual damages sustained by the tax collector, if the noncompliance is part of an effort by the landlord to defraud the tax collector. ORS 90.255 does not authorize an award of attorney fees to the prevailing party in any action arising under this paragraph.

(18) In the case of an abandoned recreational vehicle, manufactured dwelling or floating home, the provisions of this section regarding the rights and responsibilities of a tenant to the abandoned vehicle, dwelling or home also apply to any lienholder except that the lienholder may not sell or remove the vehicle, dwelling or home unless:

(a) The lienholder has foreclosed its lien on the recreational vehicle, manufactured dwelling or floating home;

(b) The tenant or a personal representative or designated person described in subsection (20) of this section has waived all rights under this section pursuant to subsection (26) of this section; or

(19)(a) In the case of an abandoned manufactured dwelling or floating home but not including a dwelling or home abandoned following a termination pursuant to ORS 90.429 and except as provided by subsection (20)(d) and (e) of this section, if a lienholder makes a timely response to a notice of abandoned personal property pursuant to subsections (6) and (8) of this section and so requests, a landlord shall enter into a written storage agreement with the lienholder providing that the dwelling or home may not be sold or disposed of by the landlord for up to 12 months. A storage agreement entitles the lienholder to store the personal property on the previously rented space during the term of the agreement, but does not entitle anyone to occupy the personal property.

(b) The lienholder’s right to a storage agreement arises upon the failure of the tenant, owner or, in the case of a deceased tenant, the personal representative, designated person, heir or devisee to remove or sell the dwelling or home within the allotted time.

(c) To exercise the right to a storage agreement under this subsection, in addition to contacting the landlord with a timely response as described in paragraph (a) of this subsection, the lienholder must enter into the proposed storage agreement within 60 days after the landlord gives a copy of the agreement to the lienholder. The landlord shall give a copy of the proposed storage agreement to the lienholder in the same manner as provided by subsection (4)(b) of this section. The landlord may include a copy of the proposed storage agreement with the notice of abandoned property required by subsection (4) of this section. A lienholder enters into a storage agreement by signing a copy of the agreement provided by the landlord and personally delivering or mailing the signed copy to the landlord within the 60-day period.

(d) The storage agreement may require, in addition to other provisions agreed to by the landlord and the lienholder, that:

(A) The lienholder make timely periodic payment of all storage charges, as described in subsection (7)(d) of this section, accruing from the commencement of the 45-day period described in subsection (6) of this section. A storage charge may include a utility or service charge, as described in ORS 90.532, if limited to charges for electricity, water, sewer service and natural gas and if incidental to the storage of personal property. A storage charge may not be due more frequently than monthly;

(B) The lienholder pay a late charge or fee for failure to pay a storage charge by the date required in the agreement, if the amount of the late charge is no greater than for late charges described in the rental agreement between the landlord and the tenant; and

(C) The lienholder maintain the personal property and the space on which the personal property is stored in a manner consistent with the rights and obligations described in the rental agreement between the landlord and the tenant.

(e) During the term of an agreement described under this subsection, the lienholder has the right to remove or sell the property, subject to the provisions of the lien. Selling the property includes a sale to a purchaser who wishes to leave the dwelling or home on the rented space and become a tenant, subject to any conditions previously agreed to by the landlord and tenant regarding the landlord’s approval of a purchaser or, if there was no such agreement, any reasonable conditions by the landlord regarding approval of any purchaser who wishes to leave the dwelling or home on the rented space and become a tenant. The landlord also may condition approval for occupancy of any purchaser of the property upon payment of all unpaid storage charges and maintenance costs.

(f)(A) If the lienholder violates the storage agreement, the landlord may terminate the agreement by giving at least 90 days’ written notice to the lienholder stating facts sufficient to notify the lienholder of the reason for the termination. Unless the lienholder corrects the violation within the notice period, the agreement terminates as provided and the landlord may sell or dispose of the dwelling or home without further notice to the lienholder.

(B) After a landlord gives a termination notice pursuant to subparagraph (A) of this paragraph for failure of the lienholder to pay a storage charge and the lienholder corrects the violation, if the lienholder again violates the storage agreement by failing to pay a subsequent storage charge, the landlord may terminate the agreement by giving at least 30 days’ written notice to the lienholder stating facts sufficient to notify the lienholder of the reason for termination. Unless the lienholder corrects the violation within the notice period, the agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the lienholder.

(C) A lienholder may terminate a storage agreement at any time upon at least 14 days’ written notice to the landlord and may remove the property from the rented space if the lienholder has paid all storage charges and other charges as provided in the agreement.

(g) Upon the failure of a lienholder to enter into a storage agreement as provided by this subsection or upon termination of an agreement, unless the parties otherwise agree or the lienholder has sold or removed the manufactured dwelling or floating home, the landlord may sell or dispose of the property pursuant to this section without further notice to the lienholder.

(20) If the personal property is a manufactured dwelling or floating home and is considered abandoned as a result of the death of a tenant who was the only tenant and who owned the dwelling or home, this section applies, except as follows:

(a) The following persons have the same rights and responsibilities regarding the abandoned dwelling or home as a tenant:

(A) Any personal representative named in a will or appointed by a court to act for the deceased tenant.

(B) Any person designated in writing by the tenant to be contacted by the landlord in the event of the tenant’s death.

(b) The notice required by subsection (3) of this section must be:

(A) Sent by first class mail to the deceased tenant at the premises; and

(B) Personally delivered or sent by first class mail to any personal representative or designated person, if actually known to the landlord.

(c) The notice described in subsection (5) of this section must refer to any personal representative or designated person, instead of the deceased tenant, and must incorporate the provisions of this subsection.

(d) If a personal representative, designated person or other person entitled to possession of the property, such as an heir or devisee, responds by actual notice to a landlord within the 45-day period provided by subsection (6) of this section and so requests, the landlord shall enter into a written storage agreement with the representative or person providing that the dwelling or home may not be sold or disposed of by the landlord for up to 90 days or until conclusion of any probate proceedings, whichever is later. A storage agreement entitles the representative or person to store the personal property on the previously rented space during the term of the agreement, but does not entitle anyone to occupy the personal property. If such an agreement is entered, the landlord may not enter a similar agreement with a lienholder pursuant to subsection (19) of this section until the agreement with the personal representative or designated person ends.

(e) If a personal representative or other person requests that a landlord enter into a storage agreement, subsection (19)(c), (d) and (f)(C) of this section applies, with the representative or person having the rights and responsibilities of a lienholder with regard to the storage agreement.

(f) During the term of an agreement described under paragraph (d) of this subsection, the representative or person has the right to remove or sell the dwelling or home, including a sale to a purchaser or a transfer to an heir or devisee where the purchaser, heir or devisee wishes to leave the dwelling or home on the rented space and become a tenant, subject to any conditions previously agreed to by the landlord and tenant regarding the landlord’s approval for occupancy of a purchaser, heir or devisee or, if there was no such agreement, any reasonable conditions by the landlord regarding approval for occupancy of any purchaser, heir or devisee who wishes to leave the dwelling or home on the rented space and become a tenant. The landlord also may condition approval for occupancy of any purchaser, heir or devisee of the dwelling or home upon payment of all unpaid storage charges and maintenance costs.

(g) If the representative or person violates the storage agreement, the landlord may terminate the agreement by giving at least 30 days’ written notice to the representative or person stating facts sufficient to notify the representative or person of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the agreement terminates as provided and the landlord may sell or dispose of the dwelling or home without further notice to the representative or person.

(h) Upon the failure of a representative or person to enter into a storage agreement as provided by this subsection or upon termination of an agreement, unless the parties otherwise agree or the representative or person has sold or removed the manufactured dwelling or floating home, the landlord may sell or dispose of the property pursuant to this section without further notice to the representative or person.

(21) If the personal property is other than a manufactured dwelling or floating home and is considered abandoned as a result of the death of a tenant who was the only tenant and who owned the personal property, this section applies except as follows:

(a) The following persons have the same rights and responsibilities regarding the abandoned personal property as a tenant:

(A) An heir or devisee.

(B) Any personal representative named in a will or appointed by a court to act for the deceased tenant.

(b) The notice required by subsection (3) of this section must be:

(A) Sent by first class mail to the deceased tenant at the premises;

(B) Personally delivered or sent by first class mail to any heir, devisee, personal representative or designated person, if actually known to the landlord; and

(c) The notice described in subsection (5) of this section must refer to the heir, devisee, personal representative, designated person or estate administrator of the department, instead of the deceased tenant, and must incorporate the provisions of this subsection.

(d) The landlord shall allow a person that is an heir, devisee or personal representative of the tenant, or an estate administrator of the department, to remove the personal property if the person contacts the landlord within the period provided by subsection (6) of this section, complies with the requirements of this section and provides the landlord with reasonable evidence that the person is an heir, devisee or personal representative, or an estate administrator of the department.

(e) If neither an heir, devisee nor personal representative of the tenant, nor an estate administrator of the department, contacts the landlord within the time period provided by subsection (6) of this section, the landlord shall allow removal of the personal property by the designated person of the tenant, if the designated person contacts the landlord within that period and complies with the requirements of this section and provides the landlord with reasonable evidence that the person is the designated person.

(f) A landlord who allows removal of personal property under this subsection is not liable to another person that has a claim or interest in the personal property.

(22) If a governmental agency determines that the condition of a manufactured dwelling, floating home or recreational vehicle abandoned under this section constitutes an extreme health or safety hazard under state or local law and the agency determines that the hazard endangers others in the immediate vicinity and requires quick removal of the property, the landlord may sell or dispose of the property pursuant to this subsection. The landlord shall comply with all provisions of this section, except as follows:

(a) The date provided in subsection (6) of this section by which a tenant, lienholder, owner, personal representative or designated person must contact a landlord to arrange for the disposition of the property must be not less than 15 days after personal delivery or mailing of the notice required by subsection (3) of this section.

(b) The date provided in subsections (8) and (9) of this section by which a tenant, lienholder, owner, personal representative or designated person must remove the property must be not less than seven days after the tenant, lienholder, owner, personal representative or designated person contacts the landlord.

(c) The notice required by subsection (3) of this section must be as provided in subsection (5) of this section, except that:

(A) The dates and deadlines in the notice for contacting the landlord and removing the property must be consistent with this subsection;

(B) The notice must state that a governmental agency has determined that the property constitutes an extreme health or safety hazard and must be removed quickly; and

(d) If the tenant, a lienholder, owner, personal representative or designated person does not remove the property within the time allowed, the landlord or a buyer at a sale by the landlord under subsection (11) of this section shall promptly remove the property from the facility.

(e) A landlord is not required to enter into a storage agreement with a lienholder, owner, personal representative or designated person pursuant to subsection (19) of this section.

(23)(a) If an official or agency referred to in ORS 453.876 notifies the landlord that the official or agency has determined that all or part of the premises is unfit for use as a result of the presence of an illegal drug manufacturing site involving methamphetamine, and the landlord complies with this subsection, the landlord is not required to comply with subsections (1) to (22) and (24) to (27) of this section with regard to personal property left on the portion of the premises that the official or agency has determined to be unfit for use.

(b) Upon receiving notice from an official or agency determining the premises to be unfit for use, the landlord shall promptly give written notice to the tenant as provided in subsection (3) of this section. The landlord shall also attach a copy of the notice in a secure manner to the main entrance of the dwelling unit. The notice to the tenant shall include a copy of the official’s or agency’s notice and state:

(A) That the premises, or a portion of the premises, has been determined by an official or agency to be unfit for use due to contamination from the manufacture of methamphetamine and that as a result subsections (1) to (22) and (24) to (27) of this section do not apply to personal property left on any portion of the premises determined to be unfit for use;

(B) That the landlord has hired, or will hire, a contractor to assess the level of contamination of the site and to decontaminate the site;