Timmerman v. Herman

Under ORS 90.370(1)(b), Tenants are entitled to possession when when “the damages awarded the tenant on her counterclaims exceed[] the amount of unpaid rent the landlord claimed was due.” L & M Investment Co. v. Morrison, 44 Or App 309, 313, 605 P2d 1347, rev den, 289 Or 275 (1980).

Tenant appealed the trial court’s order awarding possession to Landlord. Tenant assigned error to the trial court’s misapplication of ORS 90.370(1)(b) because the court did not offset the back rent with the amount of Tenant’s counterclaims and awarded possession to landlord. Tenant argued that ORS 90.370(1)(b) does not require she pay rent to be awarded possession. In response, landlord argued that Tenant was not entitled to possession because she did not pay rent to either Landlord or the court. Under ORS 90.370(1)(b), tenants are entitled to possession when “the damages awarded the tenant on her counterclaims exceed the amount of unpaid rent the landlord claimed was due.” L & M Investment Co. v. Morrison, 44 Or App 309, 313, 605 P2d 1347, rev den, 289 Or 275 (1980). The Court of Appeals held that the neither the text nor the context of ORS 90.370(1)(b) requires a tenant to pay rent to be awarded possession. Reversed.