What action can I take against my landlord for cutting off my water when that is a city service?

04/27/2009 - Landlord Tenant - State: ALL #16197

Full Question:

We live in a mobile home community. We only pay space rent. We are responsible for our own utilities. The landlord turned off our water without notification, not even a knock on our door. What course of action do we have against him?

Answer:

A tenant may terminate a tenancy if a landlord fails to provide essential utilities like water. However, the tenant must not be at fault for the failure of water to be provided, such as when the tenant is responsible for paying for the service and the amount owed is past due. If the tenant is responsible to pay for water and fails to do so, the landlord may terminate the tenancy with 30 days' written notice. The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in subsection (1) of this section. However, if substantially the same act or omission that constituted a prior violation of which notice was given recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days' written notice specifying the violation and the date of termination of the tenancy.

Nonpayment of a utility or service charge is not grounds for termination of a rental agreement for nonpayment of rent under ORS 90.394, but is grounds for termination of a rental agreement for cause under ORS 90.630.

The following are OR statutes:

90.532

(1) Subject to the policies of the utility or service provider, a landlord may provide for utilities or services to tenants by one or more of the following billing methods:

(a) A relationship between the tenant and the utility or service provider in which:

(A) The provider provides the utility or service directly to the tenant's space, including any utility or service line, and bills the tenant directly; and

(B) The landlord does not act as a provider.

(b) A relationship between the landlord, tenant and utility or service provider in which:

(A) The provider provides the utility or service to the landlord;

(B) The landlord provides the utility or service directly to the tenant's space or to a common area available to the tenant as part of the tenancy; and

(C) The landlord includes the cost of the utility or service in the tenant's rent or bills the tenant for a utility or service charge separately from the rent in an amount determined by apportioning the provider's charge to the landlord as measured by a master meter.

(c) A relationship between the landlord, tenant and utility or service provider in which:

(A) The provider provides the utility or service to the landlord;

(B) The landlord provides the utility or service directly to the tenant's space; and

(C) The landlord uses a submeter to measure the utility or service actually provided to the space and bills the tenant for a utility or service charge for the amount provided.

(2) To assess a tenant for a utility or service charge for any billing period, the landlord shall give the tenant a written notice stating the amount of the utility or service charge that the tenant is to pay the landlord, and the due date for making the payment. The due date may not be less than 14 days from the date of service of the notice.

(3) A utility or service charge is not rent or a fee. Nonpayment of a utility or service charge is not grounds for termination of a rental agreement for nonpayment of rent under ORS 90.40090.394 , but is grounds for termination of a rental agreement for cause under ORS 90.630

(4) The landlord is responsible for maintaining the utility or service system, including any submeter, consistent with ORS 90.730 . After any installation or maintenance of the system on a tenant's space, the landlord shall restore the space to a condition that is the same as or better than the condition of the space before the installation or maintenance.

(5) A landlord may not assess a utility or service charge for water unless the water is provided to the landlord by a:

(a) Public utility as defined in ORS 757.005

(b) Municipal utility operating under ORS chapter 225

(c) People's utility district organized under ORS chapter 261

(d) Cooperative organized under ORS chapter 62

(e) Domestic water supply district organized under ORS chapter 264 or

(f) Water improvement district organized under ORS chapter 552

(6) A landlord who provides utilities or services only to tenants of the landlord in compliance with this section and ORS 90.534 and 90.536 is not a public utility for purposes of ORS chapter 757 .

NOTE: Strikes errant comma in (2); replaces reference to repealed statute in (3) with comparable active statute. 90.630

(1) Except as provided in subsection (4) of this section, the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days' notice in writing before the date designated in the notice for termination if the tenant:

(a) Violates a law or ordinance related to the tenant's conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740

(b) Violates a rule or rental agreement provision related to the tenant's conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing; or

(c) Is determined to be a predatory sex offender under ORS 181.585 to 181.587 or (c)(d) Fails to pay a:

(A) Late charge pursuant to ORS 90.260
(B) Fee pursuant to ORS 90.302 or
(C) Utility or service charge pursuant to ORS 90.534 or 90.536

(2) A violation making a tenant subject to termination under subsection (1) of this section includes a tenant's failure to maintain the space as required by law, ordinance, rental agreement or rule, but does not include the physical condition of the dwelling or home. Termination of a rental agreement based upon the physical condition of a dwelling or home shall only be as provided in ORS 90.632

.

(3) The notice required by subsection (1) of this section shall state facts sufficient to notify the tenant of the reasons for termination of the tenancy and state that the tenant may avoid termination by correcting the violation as provided in subsection (4) of this section.

(4) The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in subsection (1) of this section. However, if substantially the same act or omission that constituted a prior violation of which notice was given recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days' written notice specifying the violation and the date of termination of the tenancy.

(5) Notwithstanding subsection (3) or (4) of this section, a tenant who is given a notice of termination under subsection (1)(c) of this section does not have a right to correct the violation. A notice given to a tenant under subsection (1)(c) of this section must state that the tenant does not have a right to avoid the termination.

(5) The landlord of a facility may terminate a rental agreement that is a month-to-month or fixed term tenancy for a facility space if the facility or a portion of it that includes the space is to be closed and the land or leasehold converted to a different use, which is not required by the exercise of eminent domain or by order of state or local agencies, by:

(a) Not less than 365 days' notice in writing before the date designated in the notice for termination; or

(b) Not less than 180 days' notice in writing before the date designated in the notice for termination, if the landlord finds space acceptable to the tenant to which the tenant can move the manufactured dwelling or floating home and the landlord pays the cost of moving and set-up expenses or $3,500, whichever is less.

(6) The landlord may:

(a) Provide greater financial incentive to encourage the tenant to accept an earlier termination date than that provided in subsection (5) of this section; or

(b) Contract with the tenant for a mutually acceptable arrangement to assist the tenant's move.

(7) The Housing and Community Services Department shall adopt rules to implement the provisions of subsection (5) of this section.

(8)

(a) A landlord may not increase the rent for the purpose of offsetting the payments required under this section.

(b) There shall be no increase in the rent after a notice of termination is given pursuant to this section.

(9)(6) This section does not limit a landlord's right to terminate a tenancy for nonpayment of rent under ORS 90.394 or for other cause under ORS 90.380 (5)(b), 90.396 90.398 or 90.632 by complying with ORS 105.105 to 105.168

(10)(7) A tenancy terminates on the date designated in the notice and without regard to the expiration of the period for which, by the terms of the rental agreement, rents are to be paid. Unless otherwise agreed, rent is uniformly apportionable from day to day.

(11) Nothing in subsection (5) of this section shall prevent a landlord from relocating a floating home to another comparable space in the same facility or another facility owned by the same owner in the same city if the landlord desires or is required to make repairs, to remodel or to modify the tenant's original space.

(12)

(a)(8) Notwithstanding any other provision of this section or ORS 90.392 90.394 90.396 or 90.398 , the landlord may terminate the rental agreement for space for a manufactured dwelling or floating home because of repeated late payment of rent by giving the tenant not less than 30 days' notice in writing before the date designated in that notice for termination and may take possession as provided in ORS 105.105 to 105.168 if:

(A)(a) The tenant has not paid the monthly rent prior to the eighth day of the rental period as described in ORS 90.394 (2)
(a) or the fifth day of the rental period as described in ORS 90.394 (2)
(b) in at least three of the preceding 12 months and the landlord has given the tenant a notice for nonpayment of rent termination notice pursuant to ORS 90.394 (2) during each of those three instances of nonpayment;

(B)(b) The landlord warns the tenant of the risk of a 30-day notice for termination with no right to correct the cause, upon the occurrence of a third notice for nonpayment of rent termination notice within a 12-month period. The warning must be contained in at least two notices for nonpayment of rent termination notices that precede the third notice within a 12-month period or in separate written notices that are given concurrent with, or a reasonable time after, each of the two notices for nonpayment of rent termination notices; and

(C)(c) The 30-day notice of termination states facts sufficient to notify the tenant of the cause for termination of the tenancy and is given to the tenant concurrent with or after the third or a subsequent notice for nonpayment of rent termination notice.

(b)(9) Notwithstanding subsection (2)(4) of this section, a tenant who receives a 30-day notice of termination pursuant to this subsection (8) of this section does not have a right to correct the cause for the notice.

(c)(10) The landlord may give a copy of the notice required by paragraph (a) of this subsection (8) of this section to any lienholder of the manufactured dwelling or floating home by first class mail with certificate of mailing or by any other method allowed by ORS 90.150 (2) and (3). A landlord is not liable to a tenant for any damages incurred by the tenant as a result of the landlord giving a copy of the notice in good faith to a lienholder. A lienholder's rights and obligations regarding an abandoned manufactured dwelling or floating home shall be as provided under ORS 90.675

Please see the information at the following links:

http://definitions.uslegal.com/w/warranty-of-habitability/
http://lawdigest.uslegal.com/real-estate-laws/leases-and-rental-agreemen ts/
http://lawdigest.uslegal.com/real-estate-laws/landlord-tenant-rights/

04/27/2009 - Category: Landlord Tenant - State: ALL #16197

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