OSPIRG's Renters Handbook:
Chapter 6

Chapter 6: Repairs

The landlord has a responsibility to take care of all repairs that are not made necessary by the tenant, or the tenant's guests or pets.

A. Landlord Rights & Responsibilities

The landlord must keep the rental habitable at all times. (90.320(1)) Habitable means:

• a weatherproof and waterproof exterior, roof, walls, doors, and windows;
• approved plumbing facilities in good working order;
• hot and cold running water from an approved water supply connected to an approved sewage system, and maintained in good working order;
• safe drinking water if the water is under the landlord's control;
• adequate and approved heating facilities in good working order;
• electric lighting, wiring, and equipment, approved and in good working order;
• clean and sanitary buildings and grounds, free from accumulation of debris, filth, rubbish, garbage, rodents and vermin, and safe for normal and reasonable uses (these obligations only apply to common areas after the tenant moves in)
• adequate garbage receptacles. It may be the tenant's responsibility to pay for garbage collection if specified in the rental agreement.
• Note: Portland has strict rules on who must pay for garbage service and recycling. (See Garbage/Recycling, page 27)
• floors, walls, ceilings, stairs and railings in good repair;
• if provided, ventilation or air conditioning, elevators, or other facilities and appliances (washers, dryers, stoves, refrigerators, etc.), in good working order;
• safety from fire hazards;
• working smoke detectors with working batteries provided only at the beginning of the tenancy (the tenant is responsible for testing the device inside the unit, and the landlord is responsible for testing in common areas);
• working locks for all outside doors except doors to common areas, and keys to locks that require keys;
• working latches for all windows that open (except common areas), unless fire or safety regulations prohibit them.

Portland, Salem, Springfield, and Keizer have additional habitability standards.

Notify the Landlord of Needed Repairs

If something needs to be repaired, the tenant should first notify the landlord. Although not required, it is a good idea to call the landlord, and then follow-up with a request in writing.

In the letter, the tenant should specify what repair(s) needs to be done and when would be a good time for the landlord to access the premises to make the repair(s).

Tenant-Requested Repairs

If the tenant requests repairs in writing, the landlord may enter the unit without further notice. Unless the tenant's notice specifies times, the landlord may enter at any reasonable time for up to 7 days after the tenant's request to make the repairs. (90.322(c)) If someone other than the landlord does the repairs, the person must provide the tenant, upon the tenant's request, with written authority from the landlord to make the repairs. (See Access, below)

B. Access

A landlord may enter the tenant's dwelling to:

• inspect the premises;
• make necessary or agreed repairs,decorations, alterations, or improvements;
• supply necessary or agreed-upon services; or
• show the dwelling unit to prospective or actual purchasers, mortgagors, tenants, workers, or contractors. (90.322)

Notice of Entry

Unless the landlord and the tenant agree otherwise, the landlord must give the tenant at least 24 hours' written or verbal notice of intent to enter the premises. This notice is required, except for emergencies, for all repairs and maintenance work initiated by the landlord. He may then enter at a reasonable time as agreed to by the tenant and the landlord.

The tenant may deny consent to entry. To do so, the tenant must give written or verbal notice to the landlord denying entrance, or post it on the front door of the dwelling. The tenant must, however, provide reasonable access to the landlord. (See "Abuse of Access," page 32)

Legal Entry without Consent

The landlord may enter the rental without notice or consent in the following cases:

• an emergency, which includes a repair problem which must be repaired immediately to avoid serious damage;
• Note: The landlord must provide written or verbal notice within 24 hours of an emergency entry.
• when the tenant has requested repairs in writing;
• when the tenant has been absent for more than 7 days and entry is reasonably necessary;
• pursuant to a legal order;
• when the tenant has abandoned or surrendered the premises; or
• to come onto the property in
  order to serve a notice.

The landlord shall not abuse the right to access or use it to harass the tenant, nor shall the tenant unreasonably deny access to the landlord. (90.322)

Abuse of Access

If the landlord makes an unlawful entry, a lawful entry in an unreasonable manner, or an unlawful demand which harasses the tenant, the tenant may obtain a court order or end the rental agreement. The tenant can recover damages amounting to no less than one month's rent. (90.322(7))

If the tenant unreasonably withholds access, the landlord may obtain an injunction or terminate the rental agreement. The landlord may also recover actual damages. (90.322(6))

D. Tenant Remedies for Lack of General Repairs (90.360)

The statute separates general maintenance into two categories: general services and essential services.

If the landlord fails to repair a problem, the tenant may fall back on the general remedies section of the Act. The general remedies provided by 90.360 are damages and relief through a legal order (injunction) which can be asserted by suing the landlord or defending against an eviction. The tenant can also end the tenancy under this section.

Note: The Act's general provision for habitability remedies applies to all material violations of the rental agreement (90.360(2)) as well as to violations of the landlord's habitability obligations. However, the tenant must prove that the landlord knew or should have known of the problem(s) in the counterclaim. (90.370)

Tenants can choose to enforce either general remedies or essential remedies, but not both. Choose the one which seems best given the desired outcome, the risks being taken, and the strength of the case. In many cases, reaching an agreement with the landlord will best solve the problem.

The three options available to tenants are:

1. "Fix or I Quit" - Tenant Termination for Cause

This remedy is applicable for breaking a long-term agreement before the term is up. (90.360) Month-to-month tenants may terminate on 30-days notice with or without a reason. (See Regular Terminations, page 40)

If the landlord has failed to live up to her part of the contract or has violated the Landlord Obligations in a way that substantially affects the value of the tenancy to the tenant, the tenant may:

deliver a written notice listing any and all breaches of the contract; the notice may state that if the breaches are not cured within 30 days (7 days in the case of essential services), then the
agreement will terminate at the end of that 30 days.

If the breach is fixed (by repair, payment of damages, etc.) before the date specified in the notice, the agreement is not terminated.

Recurring Problem

If the same general problem recurs within 6 months, the tenant may terminate the agreement upon 14 days written notice. The notice must again specify the problem and the date of termination of the rental agreement.

Return of Deposits after Termination

If the agreement is terminated due to the landlord's breach, the tenant is entitled to the return of all prepaid rent and deposits except for the amount necessary to cover damages caused by the tenant. Additionally, the tenant may sue to recover any damages (i.e., the expense of moving, etc.).

2. Suits Against the Landlord

The tenant may recover damages and get a legal order (injunction) to fix the problem.

Warning: Court costs and attorney fees may be charged to the losing party, which could be the tenant initiating the claim.

This remedy may be the best tactic if the tenant can find a lawyer and if the other remedies don t fit the case.

Often, the landlord will negotiate a settlement rather than face an expensive court battle.

Typically, the case would include a detailed statement of everything that is wrong with the rental situation (habitability, poor management, etc.) and would ask for:

• a court order requiring the landlord to make repairs and fix the problems according to a strict schedule;
• damages which could include part or all of the rent which has already been paid, the cost of repairs, any penalty provided by the Act, as well as damages suffered by the tenant(s) for living under such conditions;
• a court order forbidding any evictions for any reason, unless the eviction is approved by the court where the case is pending.

3. Defending Against An Eviction Action

The tenant's right to damages under 90.360 can be used as a defense against an eviction action based upon nonpayment of rent. However, the tenant must prove that the landlord knew of the habitability violations before the eviction (i.e., a copy of a letter listing the violations that is certified by the post office to have been sent). (90.370(1)(a)) The tenant may then counter-claim in an eviction action for damages and injunctive relief for repairs.

If the tenant counterclaims, the court may require the tenant to pay rent into court. The amount of the counter- claim is limited to the jurisdictional limit of the court (i.e., $10,000 in District Court).

Tenants should have access to an attorney before taking steps in this direction.

E. Tenant Remedies for Lack of Essential Services

The Act has special rules and remedies for getting repairs done for essential services. However, the general remedies above may also be applied to get essential services repaired.

Warning: Use these remedies with extreme caution and preferably with the help of an attorney. Some attorneys say that the general remedies are almost always a better choice because of the complexity and limitations of the essential services remedies. You can't use both remedies! A tenant who adopts one of these essential service remedies cannot also end the rental agreement for that breach as under the General Remedies (fix or I quit). (90.365(4))

The Essential Services

Originally, essential services were defined as:

• heat;
• running water;
• hot water;
• electricity; or
• other essential service.

Currently, the Act leaves the definition of "any essential service" (90.365(1)) fairly vague, and virtually any violation of the Landlord's Obligations could be viewed as a lack of essential services. (See Landlord Rights & Responsibilities, page 30)

For example, an ugly, unpainted stairway would not be an essential service violation, but a dangerous or broken stair could be. What qualifies is resolved case by case by the court.

Notify the Landlord

Tenants must notify the landlord in writing. Notice can be delivered personally or sent by first class mail. In an emergency such as no heat in the middle of winter, the statute would be satisfied by an attempted telephone notice followed by written notice as soon as is possible. Always write a letter to notify the landlord, even if you have already phoned.

Under the essential services remedies, the tenant must give the landlord "reasonable notice" to enable the landlord to provide the essential service. What qualifies as reasonable depends on the circumstances.

For example, in the case of a faulty cooking appliance or refrigerator supplied by the landlord, "reasonable notice" for one burner not working would be much greater than reasonable notice for the whole appliance not working. (90.365(3)(c))

Note: Under the essential services remedies, a tenant's rights do not take effect until the tenant has notified the landlord, or has made a serious attempt to do so in the case of an emergency.

The tenant loses his rights if he caused the damages. This could be tricky in a case like frozen pipes. However, it does not relieve the landlord from the responsibility of repairing the problem.

Prepare Some Proof

If you notify the landlord and he doesn't respond, call the housing, fire and/or health inspectors when in doubt: anything they report could be considered essential. However, not all code violations violate the Act. For more information, try calling the city or county inspectors.

Write down everything that is wrong as it happens. You will need this information for your letter to the landlord. Get it verified by a friend, or better yet, by a housing or fire inspector. The inspector's report will be sent to the landlord, but you must ask for a copy for yourself. Other forms of evidence that you might use include photos, repair estimates, receipts, and names of any repair persons involved.

If the landlord chooses to contest your claim that it was an essential service or that she was negligent, this proof will be important. If your problem is a real disaster and things happen too fast for you to establish proof from the beginning, write down everything that happened as soon as you can.

The Choices

The remedies vary depending on whether the landlord is negligent, grossly negligent, or willfully refusing to provide essential services.

Negligence -- Repair and Deduct

Negligence is the easiest to prove because the landlord has a duty to maintain the premises. If the landlord negligently fails to repair any cooking appliance or refrigerator that has been supplied; or fails to supply any other essential service, the tenant may give notice and then may have the necessary repairs made.

With the submission of receipts, the tenant may deduct the cost of repairs, up to $500, from the rent.

The landlord may specify the party who is to do the work and the land- lord and tenant may agree to a repair more costly than $500, but this should be recorded in writing. ((90.365(3), and (7))

Gross Negligence or Deliberate Refusal

These could be difficult to prove without witnesses or documents showing that the landlord knew of the problem but refused to do anything. If written notice has been given and the landlord has failed to fix the problem, the tenant has the following options:

• obtain temporary alternative forms of heat, water, electricity, or other essential services and deduct the cost from the rent;
• recover damages based on the reduced value of the rent;
• move into reasonable substitute housing and not pay rent on the original dwelling until the services are restored. A tenant may also sue for the cost of a comparably substitute housing, but not in excess of the rent of the old unit; or
• complete the work and submit
  receipts up to $500.

Willfully Refusing to Provide Essential Services and Unlawful Ouster

If the landlord unlawfully locks out the tenant or willfully cuts off any essential service, the tenant may recover up to two months rent or twice the actual damages, whichever is greater. (90.375)

The tenant may also terminate the rental agreement at which time the landlord must return all deposits and prepaid rent.

Note: Physical injury and emotional distress damages are also "actual damages," and may be doubled when ORS 90.375 applies (See <I>Damages for Physical & Emotional Distress,</I> page 39)

Withholding Rent - Things to Consider

If you withhold rent, you risk being taken to court and evicted. It is not recommended.

A landlord's violation of repair obligations may provide a tenant a defense to the payment of rent or to an eviction based on nonpayment of rent. (90.100(1), 90.125(2), 90.360(2), (90.370), 105.115(3)). This means that a tenant can legally withhold rent as a part of enforcing one of the above remedies (or enforcing a general provision -- see
The Agreement Can Include..., page 13, and The Agreement Can't Include..., page 16.)

Warning: Withholding rent is not a frivolous step. The chance of ending up in court is great, and an attorney should be consulted before withholding rent.

Step back from your case for a moment and objectively (from the perspective of a property owner or a judge) decide if you look credible. Ask yourself the following questions:

• have you acted in good faith, with honesty in fact in the conduct of the transaction?
• would it be clear to an outsider that justice is on your side?
• what do you need to do to show that you are not simply trying to
  cheat the landlord?

Note: If the landlord sues for the money deducted from the rent by the tenant, then the tenant may counterclaim for any amount up to the limit of the court in which the action is brought. (90.370) The counterclaim is in addition to defending the action for rent or possession on the same basis as outlined above.

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