Chapter § 64.4 WASTE IN THE LANDLORD-TENANT RELATIONSHIP

• Jurisdiction: Oregon

§ 64.4 WASTE IN THE LANDLORD-TENANT RELATIONSHIP

§ 64.4-1 Tenants

A tenant has a duty to take proper care of the premises. Winans v. Valentine, 152 Or 462, 467, 54 P2d 106 (1936). The tenant can be enjoined to stay waste that is threatened or being committed. Sheridan v. McMullen, 12 Or 150, 6 P 497 (1885). The lease may be canceled if the waste is substantial or tends to show destruction or injury to the estate. Higinbotham v. Wolford, 101 Or 53, 198 P 923 (1921); ORS 105.805. The tenant can also be evicted and treble damages assessed. ORS 105.805. Fault is not a prerequisite to a tenant's liability for waste. Lytle v. Payette-Oregon Slope Irr. Dist., 175 Or 276, 288, 152 P2d 934 (1944).

Before the adoption of ORS 105.805, which provides for an action for waste, a lessor brought a common-law action for waste even though the lease contained covenants on which the lessor might maintain an action for the same wrong. Winans, 152 Or at 467-68. Now, a lessor may bring an action under ORS 105.805 and for breach of the lease.

Oregon courts have addressed the interplay between the landlord's remedies for waste (1) at common law, (2) under the lease, and (3) under the Residential Landlord and Tenant Act (RLTA). See Vollertsen v. Lamb, 302 Or 489, 732 P2d 486 (1987); Waldner v. Stephens, 345 Or 526, 200 P3d 556 (2008). A tenant's obligations under lease clauses requiring the tenant to take proper care of the premises and not permit waste are no different from the obligations created by ORS 105.805. Vollertsen, 302 Or at 508. In addition, a landlord's claim under these lease clauses is for damages for a tort. Vollertsen, 302 Or at 508. When a residential lease is involved, the question then becomes whether the RLTA supersedes a landlord's statutory or common-law tort remedies for waste. It is clear that an action under ORS 105.805 is considered a tort that exists independently of the RLTA. Vollertsen, 302 Or at 509. It also appears that all other tort remedies exist independently of the RLTA. See Waldner, 345 Or at 536-38. This has...