Tenants may make unreasonable demands over maintenance issues asking for compensation or damages so landlords need to know the law.
By Bradley S. Kraus
Warren Allen, LLP
The landlord/tenant relationship naturally has its ups and downs. Anyone who has ever lived in a house knows how things inevitably break down, need repairs, and/or require fixing.
In my experience, most of these items are small inconveniences that landlords and tenants work out between themselves without the need for attorneys like me. Occasionally, I have seen tenants make unreasonable demands for rent credits, damages, and other monetary claims for the smallest of inconveniences—if they can be called that.
Fortunately, much of these demands can be pushed back upon, if the landlord has knowledge of the law and their legal obligations.
As an initial matter, Oregon landlords are required to provide habitable housing consistent with ORS 90.320, which is commonly known as the “landlord duties” statute. If the premises “substantially lacks” any of the items set forth within that statute, then a tenant may have a claim for diminution of rent. On that point, it is important for both tenants and landlords to understand that diminution does not immediately mean “a month of rent.”
Diminution of rent is often discussed as a percentage of diminution—i.e., how much of the premises is diminished—or how much of the daily rent should be discounted based upon said diminution. An old case practitioner’s reference for this point is Lane v. Kelley. Additionally, diminution of rent is only discussed in terms of the stated monthly rent, and no more. The case to review for this point is L&M Investments v. Morrison.
These two cases inform the basis of legal analysis as to damages that may or may not be owed to a tenant for a particular issue. It goes without saying that any maintenance issue should be remedied as quickly as possible to avoid triggering any demands for compensation or damages. However, that’s not always attainable or avoidable.
For example a maintenance issue. Assume that a tenant’s bathroom—one of two they have in the premises—was out of commission for a week. Because the property has multiple bathrooms, the premises may not “substantially lack” what is required under ORS 90.320 at all. Even if it does, it would certainly be an appropriate argument that the premises was not diminished by 100% of the rental amount. However, even assuming that it was diminished by 100%, the tenant would not be entitled to any diminution of rent beyond one week (as that’s the amount of time it took to remedy the issue).
Additional issues can arise when substitute housing is brought up. ORS 90.365 discusses substitute housing, which is required if the landlord “intentionally or negligently fails to supply any essential service.”
After a notice period and allowing the landlord “a reasonable time and reasonable access under the circumstances to supply the essential service,” the tenant may procure substitute housing if the dwelling unit is unsafe or unfit to occupy. This provision is not triggered under the following circumstances:
(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; or
(6) …. 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.
If substitute housing is required for some reason, then it behooves the landlord to control the substitute-housing cost by either offering the tenant a vacant unit in the complex/property, if available, or by procuring an extended-stay hotel with kitchen facilities in the area.
If that doesn’t happen, and tenants are left to their own devices, it is not uncommon for tenants to book Airbnbs and seek to recover those costs from landlords. While the statutes contain some pushback for such actions, litigation that often comes after substitute-housing demands will cause costs to skyrocket beyond the costs of that Airbnb.
Habitability issues are no fun.
Things like acts of God that displace tenants—which, in my opinion, are not the fault of landlords, despite what other narratives exist—often arise and sour the landlord/tenant relationship beyond repair. While that likely cannot be stopped, positioning yourself to mitigate costs and expense associated with such things requires knowledge of the laws, rules, and cases that control the analysis.
About the author:
Bradley S. Kraus is an attorney and partner 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.
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photo credit AndreyPopov via istockimages
