Elk Creek Management Company v. Harold Gilbert

Retaliatory eviction requires the landlord to have the intention to cause disadvantage to the tenant, motivated by some sort of injury the tenant has caused the landlord. Temporal proximity of a tenant’s complaint to a landlord and subsequent eviction is not sufficient for a tenant to establish a presumption of retaliation that would shift the burden to the landlord to demonstrate the eviction was not retaliatory.

Elk Creek Management Co. (ECM) served Defendants a 30-day no-cause eviction notice soon after Defendants complained about the electrical system. The Court of Appeals determined that retaliatory eviction requires the landlord to have the intention to cause disadvantage to the tenant, motivated by some sort of injury the tenant has caused the landlord. The Court found in favor of ECM because Defendants did not cause injury to ECM when they reported the electrical problems and ECM did not intend to harm Defendants when it evicted them. On reconsideration, Defendants argued that the Court erred by importing an “intent to harm” requirement into ORS 90.385, and that the opinion contains dicta that will have broad, detrimental consequences for tenants. The Court affirmed its statutory interpretation of ORS 90.385 (defining “retaliation”). The Court also clarified its dictum about chronology, stating that the Court only discussed legislative history in concluding that a tenant cannot rely solely on temporal proximity to establish a presumption of retaliation. Whether a trier of fact may use chronology to draw an inference of a landlord’s retaliation was not an issue before this Court. Reconsideration allowed; former opinion modified and adhered to as modified.