Elk Creek Management Co. v. Gilbert

Oregon Supreme Court · 2013 · Property

PropertyLandlord-tenantRetaliatory evictionORS 90.385retaliationnotice to terminate tenancygood-faith complaintcausation

Facts

The tenants, who rented on a month-to-month written agreement, had made general complaints to the owner about the property's electrical system. After a walk-through and then a second walk-through with a licensed electrician, the electrician recommended repairs, and it was apparent those repairs would cost the owner money. The next afternoon, the manager told the tenants the owner had decided to terminate the lease, and the next day the tenants received a 30-day no-cause termination notice plus a note stating that the owner had several repairs, including updating the electrical. The trial court found no evidence of any reason for termination other than that expressed in the manager's note, but concluded the tenants had not proved retaliation because they had not harmed the owner and the owner had not acted to inflict like harm in return.

Issue

Under ORS 90.385, must a tenant prove that the landlord served a notice of termination because of the tenant's protected complaint only, or must the tenant also prove that the complaint caused the landlord actual or perceived injury and that the landlord intended to injure the tenant in return? The case also asked what causal standard applies to retaliation under the statute.

Rule

To prove retaliation under ORS 90.385, a tenant must show that the landlord took the prohibited action because of the tenant's protected activity. The tenant need not prove that the protected activity caused the landlord actual or perceived injury or that the landlord intended to harm the tenant in return. Causation is satisfied if, but for the tenant's protected activity, the landlord would not have acted as it did; where two independently sufficient causes concur, the tenant may prevail by showing the protected activity was a material and substantial factor in the landlord's decision. The tenant need not prove the protected activity was the sole or dominant reason for the landlord's action.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Talia Moreno rents a month-to-month duplex in Eugene, Oregon, from Cedar Hollow Properties. She sends a good-faith text to the property manager reporting a recurring sewage backup that affects the bathroom. Two days later, after a plumber says the line replacement will be expensive, Cedar Hollow serves Talia with a no-cause termination notice.

If Talia asserts retaliation as a defense to the landlord's possession action, which is the strongest statement of the governing standard?

Explanation. The majority held that retaliation under ORS 90.385 turns on causal connection, not lex talionis. A tenant must show the landlord acted because of the tenant's protected activity. The tenant need not prove actual or perceived injury to the landlord, malice, hostility, or intent to harm in return, and need not show the complaint was the sole reason.