Tenant Defenses to Evictions in Oregon

In Oregon, a landlord can evict a tenant for not paying rent or for violating the lease or rental agreement. When faced with an eviction for one of these reasons, a tenant may be able to use at least one legal defense to challenge the eviction. This article will explore some of the defenses available to tenants in Oregon

Eviction Notice Requirements in Oregon

Eviction proceedings, also called forcible entry and detainer lawsuits, are governed by the Residential Landlord and Tenant chapter of the Oregon Revised Statutes. A landlord must provide the tenant with notice before filing the eviction lawsuit with the court. The notice requirements for not paying rent are slightly different from the notice requirements for violating a portion of the lease agreement.

Notice Requirements for Nonpayment of Rent

In Oregon, a landlord has two options for giving a tenant an eviction notice for not paying rent:

1. If the landlord waits for eight days after the rent is due, then the landlord only needs to give the tenant a three-day notice. The three-day notice must inform the tenant that the tenant needs to pay the rent within the three-day time period or the landlord will begin eviction proceedings (see Ore. Rev. Stat. § 90.394(2)(a)).

2. The landlord can also give notice to the tenant on the fifth day after rent is due. However, if the landlord gives the notice after only five days from the due date, the notice must give the tenant six days, or 144 hours, to pay the rent or the landlord can begin eviction proceedings (see Ore. Rev. Stat. § 90.394(2)(b)).

Notice Requirements for Lease Violations

A tenant in Oregon can also be evicted for violating the lease or rental agreement. Some examples of lease violations include not paying late rent charges, not paying the utilities bill, or having pets when none are allowed (see Ore. Rev. Stat. § 90.392(2)).

Before filing an eviction lawsuit, the landlord must give the tenant a thirty-day notice that describes the violation and allows the tenant to fix the violation, if possible. The tenant will have fourteen days after receiving the thirty-day notice to fix the violation, and if the tenant fixes it, then the landlord must not proceed with the eviction. If the tenant does not fix the violation, then the landlord can proceed with the eviction after the thirty days has expired (see Ore. Rev. Stat. § § 90.392(3) and (4)).

If the tenant fixes the violation within the time frame but then commits the same violation within six months, the landlord only needs to give the tenant a ten-day notice before filing the eviction lawsuit. This time the tenant does not have the right to fix the violation in order to stop the eviction proceeding (see Ore. Rev. Stat. § 90.392(5)).

Eviction Lawsuits in Oregon

If the tenant has not moved out of the rental unit or fixed the violation identified in the notice, then the landlord can file a complaint with the court to begin the eviction lawsuit, or forcible entry and detainer suit. The tenant will receive a copy of the complaint and summons from the court. The summons will have a date and time on it for both the landlord and the tenant to appear in court. This first court visit is called the "first appearance." If the tenant is going to challenge the eviction, the tenant must attend the first appearance. If the tenant does not attend the first appearance, the judge will likely make a final ruling in favor of the landlord, and the tenant will be evicted from the rental unit.

At the first appearance, the judge will may order the landlord and the tenant to attend mediation to try to resolve the situation. If the landlord and the tenant cannot come to an agreement during mediation, then a trial will be ordered. If the judge does not order the two parties to attend mediation, then the tenant can request a trial at the first appearance. It is at the trial that the tenant will argue any defenses to the eviction.

Before the trial, the tenant must file an answer with the court. The answer will detail any defenses the tenant wishes to make to challenge the eviction. At the trial, the tenant must prove any defenses made in the answer. The judge will listen to both the tenant and the landlord and then make a final decision regarding the eviction.

If the landlord has retained a lawyer for the trial, the tenant should strongly consider using a lawyer as well.

The Oregon State Bar and OregonLawHelp.org, a legal aid service for the state of Oregon, provide more information about the eviction proceedings.

Defenses to an Eviction in Oregon

A tenant facing an eviction in Oregon may have at least one legal defense available to challenge the eviction.

Landlord Evicted the Tenant Using "Self-Help" Procedures

A landlord cannot evict a tenant using "self-help" procedures, such as changing the locks on the door to the rental unit or shutting off utilities. If a landlord tries to evict a tenant using unlawful means, the tenant can recover damages from the landlord. The only way a landlord can legally evict a tenant in Oregon is by obtaining judgment from the court (see Ore. Rev. Stat. § 90.375). The Nolo article Illegal Eviction Procedures in Oregon has more information on "self-help" evictions.

Landlord Violated Violated Eviction Procedures in Other Ways

When evicting a tenant, a landlord must carefully follow all the rules and procedures outlined in the Oregon Revised Statutes. If the landlord does not follow all the procedures, the tenant may be able to stop the eviction lawsuit and make the landlord start the process over from the beginning. For example, a landlord cannot file a complaint with the court without first giving notice to the tenant. The notice required depends on the reason the landlord is attempting to evict the tenant. If the landlord does not provide notice to the tenant before filing the complaint, the tenant may be able to use the lack of notice as a defense to the eviction lawsuit. Keep in mind that this defense will not stop a justified eviction. The landlord will still be able to bring the eviction lawsuit after fixing any deficiencies. This option will merely give the tenant more time to remain in the rental unit.

Tenant Is Being Evicted for Not Paying Rent

A tenant who is being evicted for not paying rent may have at least one defense available to fight the eviction.

Rent Has Been Paid in Full

A tenant who receives a three-day or six-day notice for not paying rent can stop the eviction if the tenant pays the rent within that time period. If the tenant pays the rent within the time period, then the landlord cannot proceed with the eviction. If the landlord files the eviction lawsuit anyway, the tenant can use evidence of the paid rent as a defense against the eviction (see Ore. Rev. Stat. § § 90.394(3) and (4)).

Landlord Did Not Maintain Rental Unit

In Oregon, a landlord must maintain a rental unit in a habitable condition. A rental unit is considered uninhabitable if it lacks (among other things):

• waterproofing and weather protection
• working plumbing facilities
• safe drinking water and sewage facilities in good working order
• working heating facilities, and
• working electrical facilities.

For a full list of the landlord's responsibilities for maintaining a habitable rental unit, see Ore. Rev. Stat. § § 90.320 and90.730.

If the landlord fails to maintain the rental unit in a habitable condition, the tenant must first provide the landlord written notice that a repair needs to be made or an essential service needs to be provided. If the landlord does not provide services within a reasonable time, the tenant has several options available:

1. The tenant can make the repairs or provide the service and then deduct the amount of the repairs or service from the rent.

2. The tenant can recover damages from the landlord based on the lowered value of the rental unit.

3. If the repair or lack of service is so severe that the rental unit cannot be lived in, the tenant can find another place to live until the repairs are made. The tenant is not required to pay rent until the repairs are made and the tenant can move back into the rental unit.

If the landlord brings an eviction lawsuit against the tenant during this time for not paying rent, then the tenant can use evidence of the landlord's failure to make the repairs or provide the service as a defense to the eviction lawsuit.

See the Nolo article Oregon Tenant Rights to Withhold Rent or "Repair and Deduct" for more information.

Tenant Is Being Evicted for Violating the Lease Agreement

Before the landlord can evict a tenant for violating a portion of the lease agreement, the tenant must be given an opportunity to fix the violation. The tenant has fourteen days after receiving notice to fix the violation. If the tenant fixes the violation within the time frame, the landlord must not proceed with the eviction. If the landlord proceeds with the eviction anyway, the tenant can use evidence that the violation was fixed as a defense to the eviction (see Ore. Rev. Stat. § 90.392(1)).

Tenant Is Being Evicted in Retaliation of Exercising a Legal Right

A landlord cannot evict a tenant for exercising a legal right. This is called "retaliation." Oregon law allows a tenant to exercise the following legal rights without fear of eviction:

• complaining to a government agency about code or legal violations committed by the landlord
• complaining to the landlord about anything related to the rental unit
• organizing or joining a tenants' union
• testifying against the landlord in a legal proceeding
• successfully defending against an eviction lawsuit, or
• invoking any right given to a tenant under law.

See Ore. Rev. Stat. § 90.385(1).

If the landlord files an eviction lawsuit after the tenant has exercised one of these rights, the tenant can use retaliation as a defense to the eviction. See the Nolo article Oregon State Laws Prohibiting Landlord Retaliation for more information.

Landlord Is Evicting Tenant for a Discriminatory Reason

The federal Fair Housing Act makes it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. In addition to adopting all of the characteristics listed by the federal law, Ore. Rev. Stat. § 659A.421(2) makes it illegal for a landlord to discriminate against a tenant based on marital statutes, sexual orientation, or source of income. If a landlord evicts a tenant based on any of these characteristics, the tenant can use the discrimination as a defense against the eviction. See the Nolo article Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.

Additional Resources Available to Tenants in Oregon

The Oregon State Bar maintains a comprehensive database of legal topics regarding landlord/tenant issues. In addition, OregonLawHelp.org is a legal aid organization that offers legal advice and assistance to those that qualify. Even if you don't qualify for legal aid, the OregonLawHelp website offers useful information about the eviction process.

Your local court website, such as the Washington County Circuit Court, may also be a useful resource. Eviction lawsuits must be filed in the county where the rental property is located. To find your local courthouse, check out the Oregon Courts online directory.

When to Hire an Experienced Lawyer

If you have more specific legal questions about your eviction case or the landlord has already retained a lawyer, you should probably also contact a lawyer. A lawyer can handle the whole case or give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.

For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Attorney.

Also check out Nolo's Lawyer Directory for Oregon lawyers who specialize in landlord-tenant law.

More Information on Evictions and Terminations

For more articles on the subject, see the Evictions and Terminations section of Nolo.com. If you want to learn about how tenant bankruptcy affects an eviction, see the Nolo article Bankrupt Tenants.

For more information on tenant rights, see Every Tenant's Legal Guide, by Janet Portman and Marcia Stewart (Nolo).