Landlords Still Can’t Hit Back Against Complaining Tenants

Most states’ landlord-tenant laws, at least for residences, protect tenants who complain about the conditions. Generally speaking, a landlord may not retaliate against a complaining tenant (assuming the tenant made the complaint in the proper form) by evicting the tenant, raising the rent, or reducing services. In Oregon, and probably in Washington, no-cause termination notices also are prohibited if the intent is to retaliate. The question under most of these laws is exactly what retaliate means. The Oregon Supreme Court recently issued a ruling that appears to resolve that question favorably to tenants.

In the Oregon case, the tenants complained about electrical problems at about the same time the manager noticed that the building’s service mast was damaged. Oregon requires landlords to provide electricity in good working order. Two inspections determined that repairs were necessary. The day after the second inspection, the manager informed the tenants that the landlord had decided to terminate the lease, and a no-cause notice of termination was delivered the following day. The only reason stated for the termination in the notice was a need to make repairs, including electricity. The tenants refused to move, and when the landlord filed an eviction, they argued that the termination notice was in retaliation for their complaint.

Lower courts ruled that the word “retaliate” in the law implied that the tenant had to prove the landlord intended not only to get rid of a troublesome tenant, or increase rent, or cut back on services, but also that the tenant prove the landlord intended to punish the tenant. The Supreme Court disagreed. Instead, it ruled only that the tenant has to prove that the landlord’s retaliation wouldn’t have happened if the tenant hadn’t exercised his or her rights, such as by complaining about conditions. It also ruled that tenants didn’t have to rule out other reasons for the landlord’s actions.

In the recent case, the Supreme Court sent the case back to the trial court without directing a result, but it strongly implied that the tenants should win based on the absence of any evidence of a reason other than the repairs required by the tenants’ complaint. On the other hand, it also said that a tenant who fails to pay rent, or violates the lease in some other way, wouldn’t be able to claim protection under the retaliation law, and it specifically said that if the landlord had decided to terminate the lease before the tenant complained, the tenant wouldn’t be able to prove retaliation.

The Washington laws specifically say that the tenant only has to prove the landlord intended to retaliate for a protected act, and that landlords’ actions within 90 days of a tenant’s good faith complaint (with a few exceptions) require the landlord to explain their intent.

The Oregon case strengthens tenants’ protections against landlord retaliation. There are also several other laws in Oregon that use the word “retaliate,” including the civil rights laws protecting against discrimination, and the court strongly suggested that it would read those laws the same way. A tenant who thinks a landlord has done something to retaliate should document their complaints and other attempts to assert their rights, and the timing of the responses. A quick adverse act by the landlord may be enough evidence, but if the landlord says something indicating their intent, that makes the case stronger. Landlords who have problem tenants probably should keep records of complaints and problems to prove that they are meeting their requirements under the landlord-tenant laws, but should not try to evict the tenant until it is clear that the tenant has done something else to justify it. Either way, it may be helpful to consult a lawyer for an opinion which side of the line the situation falls on,

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