TEL-LAW tape number 7307: Eviction Defenses

brought to you by the Oregon State Bar and your local bar association.
This is Tel-Law tape number 7307, Eviction Defenses, brought to you by the Oregon State Bar and your local bar association. The material presented is intended to alert you to possible legal problems and solutions.

A landlord cannot evict a tenant unless the landlord takes the tenant to court and obtains a court order. This legal proceeding is called a Forcible Entry and Detainer action, or FED. During a FED, the tenant has an opportunity to present the court with reasons the tenant should not have to move. These reasons are called defenses. If the tenant's defense is successful, the tenant will be able to stay in the home.

Some defenses apply regardless of the landlord's reasons for the eviction. These defenses are based on either a mistake in the way the eviction notice was given to the tenant or mistakes made in the eviction notice itself. Oregon law requires the landlord to comply very closely with the legal requirements for eviction notices. These requirements are detailed in the statute itself. If the eviction notice is wrong, or has not been given to the tenant as required under the law, the tenant has a defense to the eviction. For example, even if the tenant has not paid rent for a particular month, the tenant can keep from being evicted for non-payment of rent if the notice is not correct. Specific requirements for eviction notices are discussed in Tel-Law tape number 7305.

Other tenant defenses to eviction proceedings depend on the reason for the landlord's eviction. A landlord may start an eviction against a tenant on a 30-day notice for cause, on a 24-hour notice for dangerous or outrageous behavior, on a 72-hour notice for non-payment of rent, or on a 30-day notice for no cause. (In some cases, such as in subsidized housing and rental of a mobile home space, the landlord may not be able to evict with a 30-day no cause notice. For more information about evictions from mobile home facilities, listen to Tel-Law tape number 7301.

A landlord's 30-day notice for cause must be based on a material non-compliance by the tenant with the rental agreement or non-compliance with the tenant's duties under the law which materially affects health and safety. The landlord's notice must also give the tenant 14 days to fix the problem. If the tenant fixes the problem, the landlord cannot evict the tenant. If the tenant does the same thing again within the succeeding six months, however, the landlord can evict the tenant with a 10-day notice.

The most obvious tenant defense to an eviction for cause is that the tenant simply did not do what the landlord is complaining about. Another possible defense is that the tenant's actions are not serious enough to cause eviction; in other words, what the tenant did wasn't a material breach of the rental agreement or of a duty that affects health or safety.

Another possible defense is that the landlord's attempt to evict is based on the landlord's enforcement of an unreasonable rule. For more information about rules, listen to Tel-Law tape number 7304 for regular rental housing rules or Tel-Law tape number 7303 for rules in mobile home and floating home facilities.

Finally, the tenant may attempt to prove that the tenant has in some way remedied the landlord's complaint, by repairs, payment of damages, or otherwise.

In evictions based on non-payment of rent, the best defense for the tenant is, of course that the rent actually was paid. A tenant may also have a defense if the tenant paid only part of the rent. In some cases, but not all, the landlord loses the right to evict a tenant for non-payment of rent if the landlord accepts a partial payment. The landlord does not waive the right to evict if the landlord accepts the part payment before giving a non-payment notice, if the tenant has agreed to pay the rest by a certain time and then fails to pay as agreed. The landlord does not waive the right to evict a non-paying tenant by accepting a subsidy payment from a government agency. There are several other technical exceptions to the defense based on a landlord's acceptance of rent after giving an eviction notice. Get legal advice.

Even if the tenant has paid no rent at all, the tenant may have a defense to an eviction for non-payment of rent if the tenant has a claim against the landlord that would entitle the tenant to be compensated by the landlord for damages the tenant suffered. Most significant among such claims are those based on run-down conditions in the dwelling unit if the landlord is required by law to fix those conditions. The rent the tenant is to pay under the rental agreement is for the dwelling unit in a habitable condition. A dwelling is habitable if it meets all the requirements set out in the law. The rental value of a dwelling unit which does not meet these requirements is less than the tenant paid to the landlord. The tenant can ask the court to determine how much money the landlord owes the tenant for damages and apply that to the rent owed. This is another situation where specific legal advice can be very helpful.

Two other kinds of claims the tenant may use to offset the unpaid rent are damages for abuse of access to the premises and for a tenant lockout or intentional interruption of essential services. Except in emergencies and under certain other exceptional circumstances, the landlord may not enter the tenant's dwelling unit unless the landlord has given the tenant at least 24 hours notice of the landlord's intent to enter. A landlord who violates this law has done what is called abuse of access; for this, the tenant may recover actual damages or not less than one month's rent. If the tenant has a claim against the landlord for abuse of the landlord's right to enter the premises, the tenant may use these damages to offset the landlord's claim for rent.

A landlord is not allowed to lock a tenant out of the dwelling unit. This is called unlawful ouster. Nor is the landlord allowed to stop essential services to the tenant. If the landlord acts in violation of this law, the tenant may recover damages up to two months' rent. Again these damages may be used to offset a landlord's claim for non-payment of rent and thereby defeat an eviction.

The law contains other claims for damages a tenant may assert against a landlord, including a landlord's knowing attempt to enforce an illegal provision in a rental agreement or the failure to disclose certain things when the rental agreement is made.

The eviction proceedings which are hardest for tenants to win are those based on 30-day notices for no cause. In these cases, the tenant has only two possible defenses: retaliation or unlawful discrimination. These defenses will not apply if the tenant is behind in rent. (A tenant who has withheld rent for lawful reasons is not considered to be behind in rent, however. Because a tenant must follow special procedures when withholding rent, get specific legal advice on this question.)

If a landlord attempts to evict a tenant after the tenant has engaged in certain kinds of protected conduct, the tenant has a defense in the eviction. The law prohibits a landlord from retaliating against a tenant who has either complained to the landlord--either orally or in writing--or has told the landlord in writing the tenant plans to complain to a governmental agency responsible for enforcement of a building, health or housing code materially affecting health or safety, for enforcement of laws or regulations concerning delivery of mail, or for enforcement of laws or regulations prohibiting discrimination in housing. The tenant is also protected from retaliation after complaining to the landlord that the landlord failed to disclose certain information; failed to maintain the dwelling unit in a habitable condition; or if the landlord abused the rights of access to the dwelling or tried to evict the tenant by means other than taking the tenant to court. The tenant is also protected from retaliation for doing any of the following:

There are several limitations on the retaliation defense to an eviction. As already noted, a tenant cannot use this defense if the tenant is behind on rent. Furthermore, the defense will not work if the defense is based on a complaint about a violation of a building or housing code, and the violation was caused primarily by the tenant or someone in the tenant's control. Finally, the landlord may evict the tenant if compliance with the applicable code would require alteration, remodeling or demolition of the dwelling unit which would effectively deprive the tenant of its use.

The only other kind of defense to an eviction based on a 30-day notice is discrimination. A landlord may not discriminate against a tenant in violation of any law, including the state laws prohibiting discrimination against persons with assistance animals, like guide dogs, and the state laws that prohibit discrimination based on race, color, sex, marital status, familial status, religion, national origin, or disability of any person. If the tenant can prove that the landlord's eviction is in violation of any of these laws, the tenant has a defense in an eviction unless the tenant is in default in rent.

In effect, when the tenant raises a defense based either on retaliation or discrimination, the landlord must justify the eviction for some other reason.

Tenants in manufactured dwelling and floating home facilities have broader protection from retaliation than tenants in standard residential dwelling units. In addition to the conduct protected in the law relating to residential tenants, facility tenants are protected after making any complaint to the landlord which is in good faith or performing or expressing the intent to perform any other act for the purpose of asserting, protecting, or invoking the protection of any right secured to tenants under any law.

Manufactured dwelling and floating home facility tenants also have another extremely significant protection; in month-to-month rental agreements, they cannot be evicted for no cause. Such tenants therefore have a good defense against any facility landlord who attempts an eviction on 30 days notice without cause.

This is a complex and changing area of the law. It is important that you realize that some of the information on this tape may be out of date by the time you hear it. This tape is not intended to be legal advice regarding your particular problem, and is not intended to replace the work of an attorney. If you do not have an attorney, the Oregon State Bar Lawyer Referral Service can assist you. The number to call is 684-3763 or toll-free in Oregon, 1-800-452-7636. They will help you contact a lawyer who can advise you.

The foregoing text is a transcription of a Tel-Law transcript that you can hear by calling 503-620-3000 or toll free (in oregon only) at 1-800-452-4776. OLA brings this transcription to you with the cooperation of the Oregon State Bar. this script is based on Oregon law, produced by volunteer lawyers as a public service. The law of other states may be different. Also, the information may be out of date. OLA encourages you to seek an attorney before relying upon this information.