(CN) - The question of whether a landlord can evict a tenant for dumping raw sewage on their property after failing to provide a sewage system landed before the Oregon Supreme Court on Tuesday.
Kate Harmon signed a lease to rent space on Greg Jared's farm in Umatilla County to park her RV until late 2022. Harmon had access to water and electricity through a cattle wellhouse situated on the agricultural land, but there wasn't a septic system on the property.
Harmon hooked her RV's septic line to a black pipe, which resulted in raw sewage being released onto the ground and into bushes close to the RV. After inspecting the site, the health department fined the landlord, and the landlord served the tenant with a lease termination notice demanding that she fix the sewage issue or leave the property.
Under the Oregon Residential Landlord Tenant Act, landlords must keep all dwellings in a habitable condition, including by providing waste disposal. Tenants are also required to keep the premises clean and sanitary.
The landlord filed an eviction action, and the tenant filed a counterclaim accusing the landlord of failing to provide a waste disposal system. The trial court and the Oregon Court of Appeals ruled in favor of the landlord, but the tenant appealed to the state's highest court, arguing that the responsibility for the sewage ultimately fell on the landlord.
The appeals court's decision "upends the balance of responsibility between landlords and tenants," said Elizabeth Lewis, an Oregon Law Center attorney representing Harmon.
For starters, the tenant argued that state law limits a tenant's responsibility to keep rented premises clean by three factors: only have a duty over areas which they control, only have a duty as the condition of the premises allows and only have a duty to the extent that the tenant has caused a problem.
Due to those factors, the tenant argues that the courts' decisions neglect to consider the landlord's duty.
"Our position is that there is no duty to maintain the premises safe and sanitary with regard to a condition that the landlord has provided as uninhabitable, such that it's impossible for tenant to use the premises without failing to maintain it safe and sanitary," Lewis said.
The Oregon Supreme Court pressed the tenant on how far her reasoning would go, posing hypotheticals to test the limits of the logic behind the argument.
"Let's say the landlord was obligated to provide air conditioning. Under your rule, would the tenant be able to break windows in order to cool the premises?" Supreme Court Justice Rebecca Duncan posited.
Lewis responded that the tenant could do a number of things to cool the property and the true question is whether a tenant can take affirmative action to do further damage to the premises.
"There is no way, in this case, for tenant to exist on the premises without utilizing or creating systems off premises," Lewis said.
So, anyone renting property to an RV for an extended period of time would have to provide sewage disposal, Lewis said.
But Chief Justice Meagan Flynn asked about the limits.
"If the landlord fails to provide heat, which we know is a landlord application, does the tenant have the option to light a fire in the middle of the living room floor?" Flynn asked.
Lewis clarified that in that hypothetical, the tenant is creating an immediate danger, unlike the circumstances in this case.
"All we're asking is that a tenant not be able to be evicted for an alleged violation of a duty that is directly related to the landlord's failure to provide a habitable premises," Lewis said.
Pushing the hypothetical even further, Duncan questioned what would happen if the tenant took porch posts from the property to use as fuel for a fireplace.
"With regard to the condition that the landlord has failed to provide habitability, the tenant has no duty," Lewis responded, noting that the tenant would retain a duty not to intentionally damage any structures that are safe and sanitary.
Nick Blanc, attorney representing the landlord, acknowledged that the landlord didn't provide a septic system but argued that the tenant's solution to the problem clearly damaged the premises and violated state law.
Flynn returned with another hypothetical, this time for the landlord: What if a landlord stopped providing garbage disposal on the property? Do tenants have an obligation to haul their trash away rather than allowing it to pile up?
Blanc argued that the tenants can terminate their lease, procure a waste service and bill the landlord, or vacate the property and bill the landlord for the cost of staying elsewhere.
"There were other tenant remedies short of, in this situation, continuing the act that caused the uncleanliness on the property," Blanc said.
Plus, Blanc argued that the tenant didn't even notify the landlord about the issue but instead called the county.
"If a landlord hasn't provided sewage, what notice would be required that sewage is not being disposed of properly?" Justice Chris Garrett asked.
Blanc argued that because an RV has a system capable of containing its sewage, the tenant had options available other than dumping sewage on the property. Blanc also acknowledged that the lease was likely invalid as it was written for a different property, the dates weren't accurate and it had a handwritten "X" over the portion regarding waste and sewage.
Justice Stephen Bushong noted that, in this situation, the landlord collected rent under an illegal lease and evicted the tenant after she called the county.
"Isn't the landlord getting all the benefits here, and should we be concerned about that?" Bushong asked.
Blanc turned back to the remedy, which would have been for the tenant to cap the RV sewage tank and stop it from seeping into the ground.
The Oregon Supreme Court didn't indicate when it would rule.
Source: Courthouse News Service
