BUTTLER, J.
This proceeding was commenced under the Forcible Entry and Detainer statutes (ORS 105.105-105.150), but defendants asserted affirmative defenses and counter-claims under the Oregon Residential Landlord and Tenant Act (ORLTA; ORS 91.700-91.895), on the basis of which the trial court, sitting without a jury, determined that plaintiff was not entitled to possession, and that defendants were entitled to continued possession, to damages, and to a mandatory injunction requiring plaintiff to make certain repairs to the premises, and that until such repairs were completed the rental would be reduced from $200 per month to $50 per month.
Plaintiff and defendants entered into a written month-to-month rental agreement with respect to a four-bedroom house for $200 per month. Defendants inspected the premises prior to executing the agreement, but the record indicates that the premises did not comply with the provisions of ORS 91.770 relating to the habitability of a dwelling unit. Defendants took possession on November 26, 1976; on February 1, 1977, defendants tendered a check to plaintiff in the amount of $150, stating that the balance of $50 would be forthcoming. The check was dishonored by the bank upon which it was drawn. On February 15, defendants registered a complaint with the health department stating, among other things, that the toilet on the second floor of the premises leaked contaminated water into the first floor kitchen area. An abatement order was mailed to plaintiff by the health department on February 16, and on February 18 plaintiff sent defendants notice to quit the premises for failure to pay rent. Rent was not paid, and this proceeding was commenced on March 4, 1977.
The trial court found that defendants were entitled to damages in the amount of $400 for "diminished
rental value,” and $250 for "mental distress,”
as a result of which the damages exceeded the rental due; therefore, defendants were not in default in the rental, ORS 91.810,
and plaintiff was not entitled to possession of the premises. The trial court also found that plaintiff commenced these proceedings in retaliation against defendants’ complaining to the health department, and awarded defendants damages for retaliation, ORS 91.865,
in the amount of $400. ORS 91.815.
The court further granted defendants a mandatory injunction requiring plaintiff to make numerous specific repairs to the premises to bring them into compliance with the housing code
and the habitability requirements of the act,
and entered a declaratory
judgment in favor of defendants to the effect that the rental value of the premises would be $50 per month "henceforth until the above listed repairs have been completed.” The trial court also awarded defendants attorney’s fees as the prevailing party.
In this appeal, the only assignment of error that merits consideration is plaintiff’s contention that the ORLTA requires written notice from the tenant to the landlord specifying the breach of the rental agreement
or
statutory provisions before certain remedies are available to the tenant. It cannot be determined from the pleadings, the trial court’s findings or the judgment whether defendants rely on ORS 91.800 or 91.805 with respect to damages other than those for retaliation by the landlord. In their brief, however, defendants contend unequivocally that their claim is under ORS 91.800(2) because they concede that ORS 91.805 requires written notice from the tenant to the landlord which they do not contend was given here. Defendants also concede that ORS 91.800(1) requires that such written notice be given, but argue that ORS 91.800(2) does not require such notice. ORS 91.800 provides:
"(1) (a) Except as provided in ORS 91.700 to 91.895, if there is a material noncompliance by the landlord with the rental agreement or a noncompliance with ORS 91.770, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than 30 days after receipt of the notice if the breach is not remedied in seven days in the case of an essential service or 30 days in all other cases, and the rental agreement shall terminate as provided in the notice subject to paragraphs (b) to (d) of this subsection.
"(b) If the breach is remediable by repairs, the payment of damages or otherwise and if the landlord adequately remedies the breach before the date specified in the notice, the rental agreement shall not terminate by reason of the breach.
"(c) If substantially the same act or omission which constituted a prior noncompliance of which notice was given recurs within six months, the tenant may terminate the rental agreement upon at least 14 days’ written notice specifying the breach and the date of termination of the rental agreement.
"(d) The tenant may not terminate for a condition caused by the déliberate or negligent act or omission of the tenant, a member of his family or other person on the premises with his consent.
"(2) Except as provided in ORS 91.700
Free access — add to your briefcase to read the full text and ask questions with AI
BUTTLER, J.
This proceeding was commenced under the Forcible Entry and Detainer statutes (ORS 105.105-105.150), but defendants asserted affirmative defenses and counter-claims under the Oregon Residential Landlord and Tenant Act (ORLTA; ORS 91.700-91.895), on the basis of which the trial court, sitting without a jury, determined that plaintiff was not entitled to possession, and that defendants were entitled to continued possession, to damages, and to a mandatory injunction requiring plaintiff to make certain repairs to the premises, and that until such repairs were completed the rental would be reduced from $200 per month to $50 per month.
Plaintiff and defendants entered into a written month-to-month rental agreement with respect to a four-bedroom house for $200 per month. Defendants inspected the premises prior to executing the agreement, but the record indicates that the premises did not comply with the provisions of ORS 91.770 relating to the habitability of a dwelling unit. Defendants took possession on November 26, 1976; on February 1, 1977, defendants tendered a check to plaintiff in the amount of $150, stating that the balance of $50 would be forthcoming. The check was dishonored by the bank upon which it was drawn. On February 15, defendants registered a complaint with the health department stating, among other things, that the toilet on the second floor of the premises leaked contaminated water into the first floor kitchen area. An abatement order was mailed to plaintiff by the health department on February 16, and on February 18 plaintiff sent defendants notice to quit the premises for failure to pay rent. Rent was not paid, and this proceeding was commenced on March 4, 1977.
The trial court found that defendants were entitled to damages in the amount of $400 for "diminished
rental value,” and $250 for "mental distress,”
as a result of which the damages exceeded the rental due; therefore, defendants were not in default in the rental, ORS 91.810,
and plaintiff was not entitled to possession of the premises. The trial court also found that plaintiff commenced these proceedings in retaliation against defendants’ complaining to the health department, and awarded defendants damages for retaliation, ORS 91.865,
in the amount of $400. ORS 91.815.
The court further granted defendants a mandatory injunction requiring plaintiff to make numerous specific repairs to the premises to bring them into compliance with the housing code
and the habitability requirements of the act,
and entered a declaratory
judgment in favor of defendants to the effect that the rental value of the premises would be $50 per month "henceforth until the above listed repairs have been completed.” The trial court also awarded defendants attorney’s fees as the prevailing party.
In this appeal, the only assignment of error that merits consideration is plaintiff’s contention that the ORLTA requires written notice from the tenant to the landlord specifying the breach of the rental agreement
or
statutory provisions before certain remedies are available to the tenant. It cannot be determined from the pleadings, the trial court’s findings or the judgment whether defendants rely on ORS 91.800 or 91.805 with respect to damages other than those for retaliation by the landlord. In their brief, however, defendants contend unequivocally that their claim is under ORS 91.800(2) because they concede that ORS 91.805 requires written notice from the tenant to the landlord which they do not contend was given here. Defendants also concede that ORS 91.800(1) requires that such written notice be given, but argue that ORS 91.800(2) does not require such notice. ORS 91.800 provides:
"(1) (a) Except as provided in ORS 91.700 to 91.895, if there is a material noncompliance by the landlord with the rental agreement or a noncompliance with ORS 91.770, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than 30 days after receipt of the notice if the breach is not remedied in seven days in the case of an essential service or 30 days in all other cases, and the rental agreement shall terminate as provided in the notice subject to paragraphs (b) to (d) of this subsection.
"(b) If the breach is remediable by repairs, the payment of damages or otherwise and if the landlord adequately remedies the breach before the date specified in the notice, the rental agreement shall not terminate by reason of the breach.
"(c) If substantially the same act or omission which constituted a prior noncompliance of which notice was given recurs within six months, the tenant may terminate the rental agreement upon at least 14 days’ written notice specifying the breach and the date of termination of the rental agreement.
"(d) The tenant may not terminate for a condition caused by the déliberate or negligent act or omission of the tenant, a member of his family or other person on the premises with his consent.
"(2) Except as provided in ORS 91.700 to 91.895, the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or ORS 91.770. "
"(3) The remedy provided in subsection (2) of this section is in addition to any right of the tenant arising under subsection (1) of this section.
"(4) If the rental agreement is terminated, the landlord shall return all security recoverable by the tenant under ORS 91.760 and all prepaid rent.”
Defendants’ contention seems to be that subsection (2) stands by itself as an independent statutory provision authorizing the recovery of damages and injunctive relief wholly unrelated to subsection (l),
or to any other section of the Act.
Each part or section of a statute should be construed with every other part or section so as to produce a harmonious whole. 2A Sutherland, Statutory Construction, § 46.05 (rev 3rd ed 1973);
Cal-Roof Wholesale v. Tax Com.,
242 Or 435, 443, 410 P2d 233 (1966). We must read ORS 91.800 as a whole, and also with reference to other sections of the statutory scheme. The essence of ORS 91.800(1) is that the tenant may give the landlord written notice telling him to cure certain breaches or the tenant will terminate the tenancy. Subsections (2) and (3), when read together with (1), provide, in substance, that in addition to the rights arising under subsection (1), the tenant may recover damages and obtain injunctive relief, if either is appropriate under the circumstances. It appears, therefore, that whether the tenant, after written notice to the landlord, is entitled to terminate the rental agreement or not, he may nevertheless be entitled to damages, or he may be entitled to injunctive relief. However, such relief is only available if the written notice to the landlord has been given as required by subsection (1).
This construction is compelled by construing ORS 91.800 with 91.805, subsection (1) of which relates to deliberate refusal or grossly negligent failure of the landlord to supply any "essential service,” for which damages as specified in subsections (1) (a), (b), or (c), and (2) are recoverable. Subsection (3) provides a less severe remedy for negligent failure to supply any essential service. Section (4) of ORS 91.805 provides:
"If the tenant proceeds under this section, he may not proceed under ORS 91.800 as to that breach.”
It is difficult to conclude that ORS 91.800(2) is to be construed as an independent provision for remedies when ORS 91.805(4) expressly treats the entire section (91.800) as providing remedies for a given breach, and precludes relief under ORS 91.800 if the tenant proceeds under ORS 91.805. If ORS 91.800(2) were intended to provide independent authority for damages and injunctive relief, it would seem appropriate to allow injunctive relief against the landlord for either a deliberate refusal or a grossly negligent failure to provide any essential service to the tenant. It would also seem appropriate to permit the kind of damages defendants claim are permitted under ORS 91.800(2) in cases where the landlord’s conduct is intentional. But the statute clearly circumscribes damages in such cases. ORS 91.805(1) (a), (b), (c) and (2).
Furthermore, if we were to accept defendants’ argument, the other sections of the Act relating to damages would be superfluous because ORS 91.800(2) would be all-encompassing with respect to damages for any noncompliance with the rental agreement or with ORS 91.770, requiring the landlord to maintain the premises in a habitable condition. Taken as a whole, the Act clearly indicates that such a construction is not intended.
That being the case, we hold that written notice as provided in ORS 91.800(1) is necessary before any of the remedies provided in ORS 91.800 are available. Accordingly, those parts of the judgment awarding damages to defendants for "diminished rental value” and "mental distress” (both of which defendants claim under ORS 91.800(2)), and granting defendants a mandatory injunction against plaintiff are in error.
Having concluded that defendants were not entitled to damages under ORS 91.800(2), we must consider what effect that holding has on the rest of the judgment. Plaintiff contends that the trial court erred in awarding defendants damages for retaliation under ORS 91.865. While there is sufficient evidence, including the presumption under ORS 91.865(2), to permit the finder of fact to conclude that plaintiff filed this proceeding in retaliation for defendants’ complaining to a governmental agency charged with responsibility for enforcement of a building or housing code violation (ORS 91.865(1) (a)), it is conceded that defendants had failed to pay the rent due. Accordingly, under ORS 91.865(3) (b), plaintiff was entitled to bring this action for possession notwithstanding conduct which might
otherwise be deemed retaliatory. Defendants rely on ORS 91.810 in contending that if the damages to which they are entitled (excluding those for retaliation) exceed the amount of rental otherwise owing, plaintiff is not entitled to possession and defendants are entitled to damages for retaliation. We agree with defendants’ theory, but since we have concluded that defendants were not entitled to damages under ORS 91.800(2), there is nothing to offset against the rental otherwise owing.
It follows that defendants were in default on the rent and that plaintiff is entitled to possession; it also follows that defendants are not entitled to retaliatory damages.
It must also follow that plaintiff is a prevailing party, and that defendants are not entitled to attorney’s fees under ORS 91.755.
Reversed and remanded.