Sunflower v. Bladorn

EDMONDS, J., concurring. 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 30-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 (rental of dwelling unit in violation of building or housing code), ORS 90.320 (habitability) and for breach of contract. The trial court’s judgment awarded possession and damages to tenants. Plaintiffs 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: [208] “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 (l)’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 [209] Section (1) establishes an absolute prohibition against a [210] 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 [211] 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: [212] “HB 2554 is designed to address a fairly common problem: a landlord removes a notice posted by a code enforcement agency prohibiting reoccupancy of a dwelling, and rents the dwelling unlawfully to an unsuspecting tenant. HB 2554 is not designed to benefit a tenant who was in possession prior to the posting, as that is a separate problem addressed by existing law. “HB 2554 prohibits renting a dwelling unit which has been posted as unlawful to occupy until the conditions causing the posting are corrected. Subsection 2 imposes a statutory damage on a violator and makes the landlord liable for all security deposit and all prepaid rent. “The proposed modifications submitted herewith are designed to accomplish two objectives: First, to limit the prohibition, and thus damage provisions, to situations in which the posting relates to code violations which materially affect health or safety. The purpose of this modification is to ensure that a tenant does not receive a windfall as a result of a posting relating to minor or frivolous code violations.” Testimony, House Judiciary Subcommittee 2, HB 2554, April 21, 1983, Ex A (statement of Michael Marcus, Multnomah County Legal Aid Service) (emphasis in original). In his oral testimony, Marcus said: “HB 2554 is designed to address a problem which is fairly common in Portland and, I understand, other urban areas. It is designed to deal with a situation in which a rental unit becomes vacant and has been posted as unlawful to occupy by a code enforcement agency. Typically a red tag in Portland — other agencies use different forms — but the premises are quite prominently posted that unlawful to occupy because of code violations and against the code to reoccupy. It is very common, unfortunately, for owners of such buildings to remove the tag and to rent to new tenants. This bill is not designed to reach a tenant who is there at the time a problem arises [but] designed to reach illegal rerentals of buildings that have been posted.” Tape recording, House Judiciary Subcommittee 2, HB 2554, April 21, 1983, Tapes 259, Side B, and 260, Side A (statement of Michael Marcus, Multnomah County Legal Aid Service). There was little discussion in the Subcommittee on HB 2554, and none of the discussion focused on the “posting” [213] requirement of the bill. From the legislative record, it appears that no testimony was taken by the full House Committee on the Judiciary and that no reported discussion occurred, other than the mention that a representative from a landlord organization had appeared before the Subcommittee and had supported the bill. See Tape recording, House Committee on the Judiciary, HB 2554, May 2, 1983, Tape 283, Side A. The House Committee on the Judiciary sent the bill to the House with a “do pass” recommendation. The measure summary provided: “[HB 2554] imposes penalties and liability or [sic] landlord who knowingly rents premises when dwelling unit is posted by code enforcement agency as being unlawful to occupy because of conditions materially affecting health or safety.” The analysis of the measure furnished to the house makes no mention of the problem of landlords removing notices. When HB 2554 went to a vote on the house floor, Representative Smith explained: “This bill simply prohibits a landlord from entering into a rental agreement with someone after a premises has been red tagged. Red tagging basically is what a local government might do to a unit because it falls down under code violations and frankly shouldn’t be occupied. It expresses the penalties for what happens in that circumstance * * Tape recording, House Floor, HB 2554, May 12,1983, Reel 12, Track 1 (statement of Representative Smith). Then, before the Senate Judiciary Committee, Marcus explained in his written testimony: “This bill is designed to respond to the scenario in which a landlord unlawfully removes a code enforcement notice prohibiting further occupancy because of code violations and rerents the apartment without curing those violations. The bill is only intended to address dwellings which become vacant and are then posted as unlawful to occupy. The code violations must ‘materially affect health or safety’ for the statute’s sanctions to come into play. Those sanctions are that the landlord is liable for either two months’ periodic rent or up to twice the actual damages, and must return all security deposit owed to the tenant and all prepaid rent if the tenant elects to terminate the tenancy. ‘All reasonable moving expenses’ was removed from the original bill [214] because that is included within ‘actual damages’ in the present form of the bill.” Testimony, Senate Judiciary Committee, HB 2554, June 8,1983, Ex E (statement of Michael Marcus, [Multnomah County] Legal Aid Service). In his oral testimony before the senate committee, Marcus said: “The purpose of the bill is to add an effective sanction for a landlord who would rerent an unlawful dwelling without curing the violation again only — two important qualifications, it only applies to a dwelling that has become vacant, it’s not a sanction where a tenant who is there before its been posted can apply and the other is that the violations must materially affect healthy or safety * * Tape recording, Senate Judiciary Committee, HB 2554, June 8, 1983, Tape 193, Side B (statement of Michael Marcus, [Multnomah County] Legal Aid Service). No reported discussion took place before the committee voted to send the bill to the floor with a “do pass” recommendation. The staff measure analysis discussed the “problem addressed” by the bill and the “function and purpose of the measure as reported out.” Under “the problem addressed,” the analysis explains: “Landlords who have had their building posted for violations of housing or building codes have been known to remove the notice and re-rent the premises. These tenants can then be forced to vacate by local authorities.” The analysis furthers says, “The bill prohibits a landlord from entering into a rental agreement with a new tenant while a dwelling is posted as unlawful for occupancy because of conditions which materially affect health or safety in violation of the building or housing code. It provides that a landlord who knowingly violates this prohibition is liable to a tenant who elects to or is forced to move from the tenant’s security deposit and any prepaid rent. The tenant is also entitled to recover two months rent or twice actual damages, whichever is greater.” When the bill was submitted to the entire Senate, Senator Frye explained, “Buildings that are in violation of building or safety codes are sometimes declared unlawful to occupy. Under the current law a tenant who unknowingly rents a posted [215] facility may be evicted by the authorities. HB 2554 prevents landlords from renting structures which may have been deemed unlawful to occupy. It provides for statutory damages if there is a knowing violation * * *. In a nutshell, if premises are posted as unsafe to occupy and a landlord knowingly goes ahead and rents those premises, he’s going to be liable for the statutory penalties which HB 2554 contains.” Tape recording, Senate Floor, HB 2554, June 15, 1983, Tape 134, Side B (statement of Senator Frye). The bill passed both the Senate and the House without further reported discussion and became law. In 1993, the same landlord/tenant advocates who had sponsored the 1983 legislation, proposed again a compromise bill, HB 2968. That bill included the language embodied in ORS 90.380(3). The staff measure summaries to the house and senate committees explained that that section of the bill: “[plrovides that a tenant may terminate a rental agreement immediately if a landlord rents an unsafe dwelling and requires the landlord to return any pre-paid rent and the security deposit after deducting any unpaid rent or damages. Tenant recourse depends on whether the landlord knowingly violated the law, who caused the damage, and at what point in the tenancy the building became unsafe.” House Committee on Commerce, HB 2968, April 29, 1993 (bill file).3 The summary of the bill as presented by the landlord/tenant sponsors provides in its section-by-section explanation: “As amended, this statute would cover three different situations. “i. First, where a landlord rents a rental unit which the landlord knows to have previously been posted by a governmental agency as unlawful to occupy (a health or safety code violation or, in Portland, ‘renting over a red tag’), the tenant may immediately terminate the tenancy, with actual notice (oral or written) stating the reason, and/or in [216] any case recover damages, at the tenant’s option. (In many cases, the tenant will not discover the unsafe posting until notified by the governmental agency, and that agency usually will force the tenant to vacate.) “ii. Second, after the tenancy has begun, where a government agency posts a rental unit as unlawful to occupy due to a condition not caused by the tenant (such as when a wind storm rips off the roof), the tenant may immediately terminate with the same kind of notice, but with no damages.” Testimony, Senate Judiciary Committee, HB 2968A, June 21, 1993, Ex C (statement of Kevin Hanway, Association of Oregon Housing Authorities). John Van Landinghaxn, representing the Lane County Legal Aid Service, explained to the Senate Judiciary Committee that of the three situations, “The first occurs when a landlord does what in Portland is known as ‘renting over a red tag.’ A unit has already been determined to be unsafe for occupancy by a local governmental agency and that agency has posted it as unsafe for occupancy and the landlord removes the posting and rents it anyway. What the law would do is allow the tenant to terminate the tenancy immediately * * Tape recording, Senate Judiciary Committee, HB 2968, June 21,1993, Tape 198, Side A (statement of John Van Landingham, Lane County Legal Aid Service). As is evident from the legislative history, there is nothing in the language of ORS 90.380(1) that contemplates that, in the absence of a physical posting, there is no entitlement to damages under ORS 90.380(2). The emphasis of the legislature in the legislative history is on the rerenting of a dwelling that has been determined previously to be unlawful to occupy. Although the mention is made of Portland’s “red tagging” and of landlords removing the red tags, the legislative history does not suggest that the legislature considered “red tagging” a prerequisite to landlord liability for damages. In fact, the absence of such a requirement in the language of the statute is significant in light of the legislative history. While the legislature knew that in Portland a red tag was usually affixed to the dwelling, the legislative history shows that this practice was referred to as an example, but not as a standard to be complied with on a statewide basis. The 1993 [217] amendment summary acknowledges as much. The legislature could have said in ORS 90.380(1) that “a notice be posted on the dwelling” as it does in unrelated statutes. See, e.g., ORS 624.085(3)(b) (“[p]ost a notice of closure upon the restaurant * * * in public view * * *.”). However, it chose instead to use the phrase “posted a dwelling” in ORS 90.580(1). When the text and context of the statute is considered with its legislative history, I am persuaded that the intent of the legislature was to focus on the government’s determination of the lawfulness to occupy rather on any procedural nicety of affixing a notice on the dwelling.4 In this case, the city inspector found the dwelling “to be in violation of the City Housing Maintenance Code,” and the notice informed landlord that “the code violations must be corrected and approved before the building could be reoccupied.” Landlord testified that he received the notice before he rented to tenants. Nonetheless, he entered into the rental agreement with tenants without remedying the violations. Therefore, the requirements of ORS 90.380 were met, and the trial court did not err in awarding damages under section (2). In landlord’s fourth assignment of error, he argues that the trial court erred in awarding tenants $1,400 in habitability damages when it said that there were only $700 in damages. Landlord asserts that the court made a mathematical error. Tenants argue that any error was not preserved for review on appeal because landlord had several opportunities [218] to alert the trial court to his contention. At trial, the court said: “I found that this premises was in violation of the habitability statutes, and I am going to award $1400 on that basis * * At the hearing on landlord’s motion for a new trial, the trial court gave the parties an opportunity to raise any objection to its damage calculations: “Just for my edification, because I have gone over these damages over and overt,] and I don’t have good notes and I listened [to] the tape, I would like to get from each of you what your opinion of what the damages specifically are.” Landlord did not suggest on either occasion that the trial court had made a mathematical error in the calculation of damages, nor did landlord object when the trial court listed the final figures for damages and asked, “Does everybody agree with those?” I agree with tenants that, under the circumstances, landlord did not preserve his fourth assignment of error for appeal, and, therefore, I decline to consider it. ORAP 5.45.5 Armstrong, Linder, Wollheim, and Kistler, JJ., join in this concurrence. Footnotes [1] ORS 90.380 provides, in its entirety: [209] “(1) 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. “(2) If a landlord knowingly violates subsection (1) of this section, the tenant may immediately terminate the tenancy by giving the landlord actual notice of the termination and the reason for the termination and may recover either two months’ periodic rent or up to twice the actual damages sustained by the tenant as a result of the violation, whichever is greater. The tenant need not terminate the rental agreement to recover damages under this section. “(3) If, after a landlord and a tenant have entered into a rental agreement, a governmental agency posts a dwelling as unlawful to occupy due to the existence of conditions that violate state or local law, that materially affect health or safety and that: “(a) Were not caused by the tenant, the tenant may immediately terminate the tenancy by giving the landlord actual notice of the termination and the reason for the termination; or “(b) Were not caused by the landlord or by the landlord’s failure to maintain the dwelling, the landlord may terminate the tenancy by giving the tenant 24 hours’ written notice of the termination and the reason for the termination, after which the landlord may take possession in the manner provided in ORS 105.105 to 105.168. “(4) If the tenancy is terminated, as a result of conditions as described in subsections (1) and (3) of this section, within 14 days of the notice of termination the landlord shall return to the tenant: “(a) All of the security deposit or prepaid rent owed to the tenant under ORS 90.300; and “(b) All rent prepaid for the month in which the termination occurs, prorated to the date of termination or the date the tenant vacates the premises, whichever is later. “(5) If conditions at premises which existed at the outset of the tenancy and which were not caused by the tenant pose an imminent and serious threat to the health or safety of occupants of the premises within six months from the beginning of the tenancy, the tenant may immediately terminate the rental agreement by giving the landlord actual notice of the termination and the reason for the termination. In addition, if the landlord knew or should have reasonably known of the existence of the conditions, the tenant may recover either two months’ periodic rent or twice the actual damages sustained by the tenant as a result of the violation, whichever is greater. The tenant need not terminate the rental agreement to recover damages under this section. Within four days of the tenant’s notice of termination, the landlord shall return to the tenant: “(a) All of the security deposit or prepaid rent owed to the tenant under ORS 90.300; and “(b) All rent prepaid for the month in which the termination occurs, prorated to the date of termination or the date the tenant vacates the premises, whichever is later. “(6Xa) A landlord shall return the money due the tenant under subsections (4) and (5) of this section either by making the money available to the [210] tenant at the landlord’s customary place of business or by mailing the money by first class mail to the tenant. The money shall be returned within 14 days if the tenancy is terminated under subsection (2) or (3) of this section or within four days if the tenancy is terminated under subsection (5) of this section. “(b) The tenant has the option of choosing the method for return of any money due under this section. If the tenant fails to choose one of these methods at the time of giving the notice of termination, the landlord shall use the mail method, addressed to the tenant’s last-known address and mailed within the relevant period (four or 14 days) following the tenant’s notice. “(7) If the landlord fails to comply with subsection (6) of this section, the tenant may recover the money due in an amount equal to twice the amount due.” [2] Landlord refers us to ORS 90.750 in which the words “the posting” appear. The word “posting” in that context is used to help define the word “canvassing” in the context of members of a tenant association making contact with other tenants. It does not refer to governmental action and, therefore, is of no assistance in interpreting ORS 90.380(1). [3] See also House Committee on Commerce; Subcommittee on Business, HB 2968, April 12, 1993, Ex D (staff measure summary); House Committee on Commerce; Subcommittee on Business, HB 2968, April 20, 1993, Ex B (staff measure summary); Senate Judiciary Committee and Senate Committee on Business, Housing and Consumer Affairs (staff measure summaries in bill file). [4] The dissent’s analysis and its criticism of reasoning flows from a single premise: the phrase in ORS 90.380(1), “filf a government has posted a dwelling as unlawful to occupy,” has a common ordinary meaning within the text and context of the statute. The point of my departure from the dissent’s reasoning is my disagreement with that proposition. As explained above, I believe that when the above phrase is read in context with the rest of ORS 90.380, the word “posted” does not have a clear, apparent meaning. Moreover, as is obvious in the other statutory uses of the verb “to post” referred to by the dissent, the legislature, when it wishes, knows how to require that a notice be affixed to a particular object or at what location the notice is to be published. In contrast to those statutes, ORS 90.380(1) does not say that a required notice must be placed in a particular location. Rather, the statute refers to the status of the subject dwelling as being “unlawful to occupy,” oías if a declaration had occurred about its condition. Consequently, the phrase is reasonably susceptible to more than one meaning, and, accordingly, I have gone beyond the language of the statute in an effort to ascertain and carry out the legislature’s intention. [5] Because of my disposition, I do not reach tenants’ cross-assignment of error.