Sunflower v. Bladorn
| Citation | 1 P.3d 513,168 Or. App. 206 |
| Parties | Robyn SUNFLOWER, Appellant, v. Matt BLADORN and Sharla Bladorn, Respondents. |
| Decision Date | 31 May 2000 |
| Court | Oregon Court of Appeals |
Frank Wall, Portland, argued the cause and filed the briefs for appellant.
Mark Passannante, Portland, argued the cause and filed the brief for respondents.
Before DEITS, Chief Judge, and EDMONDS, De MUNIZ, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER and BREWER, Judges.
Resubmitted En Banc March 9, 2000.
Affirmed by an equally divided court.
Plaintiff landlord appeals from a judgment awarding damages to tenants. ORS 19.205(2)(c). Landlord sought judgment against tenants for possession of leased premises through a forcible entry and detainer action (FED) after having given a thirty-day termination notice. ORS 105.120(2). Tenants raised the affirmative defense that landlord brought the action in retaliation for tenants' complaints, and they counterclaimed for damages under ORS 90.385 (retaliation), ORS 90.380 (), ORS 90.320 (habitability) and for breach of contract. The trial court's judgment awarded possession and damages to tenants. Plaintiff's appeal turns on whether ORS 90.380(1) requires the governmental agency to affix a statutorily required notice to a dwelling as a predicate to the entitlement to damages under ORS 90.380(2).
The essential facts are not in dispute. The property at issue is a single-family dwelling located in Portland. On May 30, 1997, city inspector Don Ward found that there were 15 violations of the Portland Housing Code concerning the dwelling. On June 10, Ward faxed a notice of the violations to Jackie Snyder, the tenant at that time, and mailed the notice to Carmen Llobregat—the legal owner of the property from whom landlord was buying the property on contract. Snyder subsequently moved out of the dwelling. By the end of June, landlord had received a copy of the notice sent by Ward. He went over the list of violations with tenants before renting them the dwelling without having corrected the violations. No notice of the violations was ever affixed to the dwelling. After several months, tenants complained to landlord about his failure to make the corrections. Landlord then issued tenants a 30-day no-cause notice to terminate the tenancy. Tenants did not quit the premises, and landlord filed this action. After trial, the trial court entered judgment for tenants as indicated above.
Landlord's first three assignments of error concern the trial court's award of damages under ORS 90.380. ORS 90.380(1) provides:
"If a governmental agency has posted a dwelling as unlawful to occupy due to the existence of conditions that violate state or local law and materially affect health or safety, a landlord shall not enter into a rental agreement for the dwelling unit until the conditions leading to the posting are corrected."
ORS 90.380(2) provides for up to twice the actual damages sustained by the tenant as a result of the violation "[i]f a landlord knowingly violates subsection (1)[.]" The central issue raised by the assignments is whether landlord violated ORS 90.380(1) so that tenants could recover the statutory damages provided by subsection (2). Landlord argues that section (1)'s language "if a governmental agency has posted a dwelling as unlawful to occupy" requires that a notice be affixed to the dwelling as a predicate to damages under subsection (2), a requirement that was not met here. He asserts that the legislature intended the statute to impose sanctions for only the egregious action of taking down such a notice and then renting the dwelling. Tenants respond that all of the elements for damages under ORS 90.380(2) are satisfied, once a governmental agency makes a determination of code violations, and a landlord knowingly enters into a rental agreement thereafter without first correcting the violations.
Whether the award of damages under ORS 90.380 is permissible in this case involves a question of statutory interpretation. The first level of statutory analysis requires us to examine the text and context of the statute. The verb "posted" in section (1) could be understood to refer to a notice affixed to a wall, such as to post a public notice. E.g., Webster's Third New Int'l Dictionary, 1771 (unabridged ed. 1993). Also, "post" can mean "to publish, announce, or advertise by or as if by the use of a placard" or "to enter * * * on a public listing." Id. In addition, "post" or "posted" also may commonly mean "denounced" or to invoke censure. See id. The dictionary definitions provide alternative meanings of "post," all of which must be considered in the context of the statute as a whole to determine what meaning the legislature intended.
ORS 90.380 is divided into seven sections that apply to different circumstances and provide different remedies.1 Section (1) establishes an absolute prohibition against a landlord from renting to prospective tenants a dwelling that has been "posted" by a governmental agency as unlawful to occupy due to uncorrected conditions that materially affect health or safety. Section (2) provides remedies to tenants for a landlord's knowing violation of section (1). Those remedies include termination of the tenancy and damages of either two months rent or twice the tenant's actual damages. If the violation is "unknowing," a tenant is left to other remedies not contained in ORS 90.380 except as stated in section (4). Section (3) provides remedies to a landlord and existing tenants after a governmental agency has "posted" a dwelling during the tenancy due to conditions that materially affect health or safety. Subsection (3)(a) allows a tenant to terminate if the conditions were not caused by the tenant, and, conversely, subsection (b) allows a landlord to terminate if the conditions were not caused by the landlord. Section (4) requires a landlord to return any security deposit and prepaid rent if the tenancy is terminated under section (1) or (3). Section (5) applies to conditions that pose an imminent and serious threat to the health or safety of occupants as distinguished from conditions that materially affect health or safety. Section (5) allows a tenant to terminate the tenancy within six months of its outset for those conditions expressed in section (4) as long as they were not caused by the tenant. That section also allows for damages of either two months rent or twice the tenant's actual damages if the landlord knew or should have known of the conditions. In addition, the tenant can recover under subsection (5)(a) and (b) any security deposit and prepaid rent. Section (6) establishes the requirements for the return of security deposits and prepaid rent, and section (7) authorizes a tenant to recover twice the amount due if a landlord violates the requirements of section (6).
In context, the statute's overall focus is prohibitive in nature. It seeks to prevent the leasing of premises that are in violation of building code provisions. The "posting" requirement in section (1) is a requirement that the dwelling be determined by a governmental agency to be unlawful to occupy before the remedies of section (2) are triggered. The scientor element in section (2) that the landlord "know" of the violations only plays a role regarding the remedies that are available after the initial determination of a violation is made. Sections (2) and (5) operate to sanction a landlord who "knows" of the existence of the violations and rents or continues to rent the premise with that knowledge after such a determination. In context, the word "posted" can mean only that the city has made a determination that the code violations exist.2
The text and context of ORS 90.380 suggests little doubt about the legislature's intent to award tenants damages under the circumstances of this case without a notice being affixed to the dwelling. Even if doubt remains, the legislative history shows that the legislature's focus was on providing a disincentive for landlords who know that their buildings are unlawful to occupy to rent to new tenants and not to impose a predicate to the entitlement of damages. In 1983, Multnomah County Legal Aid Service requested and, apparently, provided the original language of HB 2554 that became former ORS 91.817(1) and (2), renumbered as ORS 90.380(1) and (2) (1989). Before HB 2554 reached the House Subcommittee on the Judiciary, tenant and landlord advocates had reached a compromise on a package of bills that included the amendments to HB 2554. Michael Marcus provided the bulk of the written and oral testimony before the Subcommittee and later before the Senate Judiciary Committee. He explained, in his written testimony to the Subcommittee that:
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Sunflower v. Bladorn, S47775.
...P.3d 1174 331 Or. 283 Sunflower v. Bladorn. No. S47775. Supreme Court of Oregon. November 7, 2000. Appeal from No. A101790, 168 Or.App. 206, 1 P.3d 513. Petition for review is ...