Dealing with habitability issues and substitute housing as even the smallest of molehills can be made into a mountain by unreasonable individuals.
Bradley S. Kraus
Partner, Warren Allen LLP
Life happens. Common sense tells us that things inevitably break, require replacement, and/or cause issues. This fact also exists in the landlord/tenant context, as fixtures/appliances break, require replacement, and cause irritation to everyone. Most of the time, these repairs/replacements are no big deal, and are quickly and painlessly resolved.
However, even the smallest of molehills can be made into a mountain by unreasonable individuals. As a landlord’s attorney, I have seen cases wherein a simple light bulb being out causes the other side to melt down and claim the premises is uninhabitable. While this is obviously an extreme case, there’s obviously varying degrees of these cases.
Sometimes, a flood or fire occurs, which does in fact render the premises uninhabitable. Landlords intrinsically understand that these problems need to be addressed, as ORS 90.320 requires. However, acting without a plan can create a scattered process—which can paint us in a bad light, should the tenant decide to pursue damages.
As an initial matter, I should go without saying that any reasonable maintenance request should be addressed with as much haste as possible. Varying degrees exist, as a light bulb being out does not have the same urgency as a shower leak. However, when a maintenance request comes that requires action, an entry should be requested from the tenant if the tenant makes a verbal maintenance request. That request should be documented, and if the tenant denies consent to enter, then (a) that should be noted, as it clearly is not severe, and (b) a Notice of Intent to Enter should be served to inspect and document the issues.
If the maintenance request is in writing, then ORS 90.322(1)(c) allows the landlord to enter upon demand to make the repairs without further notice or consent. Many landlords still do request or inquire as to a good time to enter, simply out of courtesy, but the statute would not require it. Once inspecting, photos should be taken of the issue and placed in the file, providing the landlord with evidence of the issues. If they are significant and/or require an outside vendor, those requests/calls should be made immediately and documented.
If the issues/repairs render the place uninhabitable or unusable, then substitute housing may be something to explore, depending on the circumstances (more on that below). If substitute housing is appropriate, then it is important that landlords control this process. If the landlord has a comparable unit available, that should be offered to the tenant with a temporary transfer agreement. It is important that this understanding be put in writing, as I have seen cases wherein tenants refuse to leave their new place of occupancy, even after the repairs are made. Having this agreement in writing is important to spell out what will occur, and when, if the tenant fails to vacate.
Landlords also want to control this process to control the cost. In the context of substitute housing, tenants are only entitled to “comparable housing” which has a specific definition under ORS 90.365. When landlords do not have control, cases can arise wherein tenants decide it is appropriate to stay at the Ritz Carlton. While ORS 90.365 says that they can do this as long as they pay for the additional cost, litigation often arises as to “who pays what” which can be just as expensive.
Finally, keep in mind that the cost of repairs, or the requirement of substitute housing, are only borne by the landlord if the tenant did not cause the issues which necessitated the repairs. In other words, if the tenant causes a flood, then (a) they are responsible for those damages, and (b) the landlord is not required to provide substitute housing. Due to this fact, it is important to quickly identify any issues in the premises, completely document the same, and, if necessary, have a third-party expert/vendor determine the cause and/or extent of the issue. Doing so can set you up for success if litigation arises and save you money in the long run.
About the author:
Bradley S. Kraus is an attorney at Warren Allen LLP. His primary practice area is landlord/tenant law, but he also assists clients with various litigation matters, probate matters, real estate disputes, and family law matters. You can reach him at kraus@warrenallen.com or at 503-255-8795.
Bradley Kraus, Portland attorney
