Elk Creek Management Co. v. Gilbert
353 Or. 565, 2013 WL 2370592, 303 P.3d 929 (2013)
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Rule of Law:
To establish a retaliatory eviction defense under ORS 90.385, a tenant must prove that the landlord's decision to terminate the tenancy was causally connected to the tenant's protected activity. The tenant is not required to prove that the landlord perceived an injury from the tenant's complaint or intended to inflict harm in return.
Facts:
- Before May 19, 2009, tenants Harold Gilbert and Melissa Strittmatter made general complaints to the property owner, Nancy DeBoer, about the electrical system.
- The property manager, employed by Elk Creek Management Co., also noted concerns about the electrical service mast.
- On June 16, 2009, the owner and manager conducted a walk-through of the premises with a licensed electrician.
- Following the walk-through, the electrician recommended that the owner make repairs to the electrical system, which would involve a cost to the owner.
- The next afternoon, the manager informed the tenants by phone that the owner had decided to terminate their lease.
- The following day, the tenants received a 30-day no-cause termination notice accompanied by a note stating, 'I am sorry that I have to give you the thirty days notice. [The owner] has several repairs including updating the electrical.'
Procedural Posture:
- Elk Creek Management Co. filed an action for possession against tenants Harold Gilbert and Melissa Strittmatter in an Oregon circuit court (trial court).
- The tenants raised the affirmative defense of retaliatory eviction under ORS 90.385.
- The circuit court rejected the tenants' defense and entered a judgment for the landlord, finding the tenants had not proven the landlord acted with a retaliatory motive in the sense of 'an eye for an eye'.
- The tenants, as appellants, appealed to the Court of Appeals of Oregon (intermediate appellate court).
- The Court of Appeals affirmed the trial court's judgment, holding that retaliation requires proof of the landlord's intent to cause a disadvantage motivated by an injury caused by the tenant.
- The tenants, as petitioners, sought review from the Supreme Court of Oregon (highest court), which was granted.
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Issue:
To prove unlawful retaliation under ORS 90.385, must a tenant demonstrate that the landlord perceived the tenant's complaint as an injury and intended to inflict a like injury in return, or is it sufficient to show that the landlord terminated the tenancy because of the tenant's complaint?
Opinions:
Majority - Walters, J.
No. To prove retaliation under ORS 90.385, a tenant need only establish that the landlord terminated the tenancy because of the tenant's protected complaint, not that the landlord intended to inflict a retaliatory injury. The trial court and Court of Appeals incorrectly interpreted 'retaliate' to mean an 'eye for an eye' concept, requiring proof of a perceived wrong and an intent to inflict a like injury. The correct interpretation focuses on causation. The statute's text, context, and legislative history show it was designed to protect tenants exercising their legal rights, such as complaining about habitability, and to encourage landlords to fulfill their statutory obligations. Adopting the lower courts' view would undermine these legislative goals. The proper causal standard is the 'but-for' test: the landlord would not have taken the adverse action 'but for' the tenant's protected activity. In cases with two concurrent causes, either of which would be sufficient, the tenant may prevail by showing the protected activity was a 'material and substantial factor' in the landlord's decision.
Analysis:
This decision significantly clarifies the standard for retaliatory eviction in Oregon, lowering the burden of proof for tenants. By rejecting the 'lex talionis' or 'eye for an eye' interpretation of 'retaliate,' the court shifts the legal inquiry from the landlord's subjective punitive motive to an objective causal link between the tenant's complaint and the landlord's adverse action. The ruling establishes that the cost of legally-mandated repairs, prompted by a tenant's complaint, cannot serve as a legitimate, non-retaliatory reason for eviction. This precedent strengthens tenant protections and makes it easier for tenants to raise a retaliation defense, as proving causation is generally less difficult than proving a landlord's malicious state of mind.
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