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Dillingham v3/8/2000
98-02-0279C
Appeal from Circuit Court, Josephine County.
Gerald Neufeld, Judge.
Submitted on record and briefs January 7, 2000.
Reversed and remanded.
In this forcible entry and detainer (FED) action, the trial court entered judgment in landlord's favor because tenant had not given landlord written notice of the conditions that gave rise to her affirmative defense. We reverse and remand.
ORS chapter 90 provides residential tenants with rights that may be asserted in an FED action. Edwards v. Fenn, 308 Or 129, 134, 775 P2d 1375 (1989). Some rights require written notice. L & M Investment Co. v. Morrison, 286 Or 397, 405-07, 594 P2d 1238 (1979). Others do not. Id. ORS 90.360(2) falls in the latter category. It authorizes a tenant to recover damages if the landlord fails to comply with the rental agreement or ORS 90.320. A tenant's right to recover damages under ORS 90.360(2) may be asserted as an affirmative defense to an FED action, see Edwards, 308 at 134, but it may not be enforced if, among other things, "the landlord neither knew nor reasonably should have known of the condition that constituted noncompliance[,]" ORS 90.360(2).
In this case, the trial court did not permit tenant to put on any evidence to support her affirmative defense once it determined that she had not given written notice. Because no written notice was required to assert a defense under ORS 90.360(2), we reverse and remand for proceedings consistent with this decision.
Reversed and remanded.
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