Elk Creek Management Co. v. Gilbert

ORS 90.385 requires the tenant to prove that the landlord would not have taken the prohibited action but for the tenant’s protected activity, but does not require that the landlord intend to injure the tenant in response to the tenant injuring the landlord.

Gilbert, the tenant, had a month-to-month lease with Elk Creek Management, the landlord, when he complained about the electrical system on the property. An inspection revealed that the property needed electrical repairs which would impose a cost on the owner. The next day, the tenants were served with a no-cause notice to vacate the premises within thirty days. The trial court and Court of Appeals found that the termination of the lease was not retaliation because retaliation requires that the landlord intend to cause an injury to the tenant in response to the tenant injuring the landlord. While dictionary definitions appear to support the Court of Appeals’ decision, the legislative intent indicates the opposite. ORS 90.385(1) prohibits a landlord from retaliating against the tenant after a tenant takes action that the legislature protects. ORS 90.385 is part of a larger group of statutes modeled after the Uniform Residential Landlord and Tenant Act (URLTA), and the wording is nearly verbatim. Since the drafters of the URLTA made a deliberate choice to delete a requirement that the landlord intend to injure the tenant, Oregon must have intended the same. ORS 90.385 requires the tenant to prove that the landlord would not have taken the prohibited action but for the tenant’s protected activity. Reversed and Remanded.