Example of Court Annexed Arbitration Opinion: Twelve

    This matter came before me for hearing at my office. Landlord appeared with her attorney.  Tenant did not personally appear, but her attorney did appear.

    The case presents three issues for decision:

1)     What rights does Tenant have, given that she did not pay her share of the arbitrator's fee?

2)     Does she have a defense under ORS 90.425?  And

3)     Does she have a defense under ORS 90.220(9)(a)?

Payment of fees

    Washington County Arbitration Commission authorizes payment of arbitrator's fees of $100 per hour, up to six hours, payment of $300 per side.

    Tenant paid the court filing fee for her answer.  She did not obtain a fee waiver as provided for in UTCR 13.120(3) and ORS 36.420(3).  I stated in my letter of November 22 that payment of the $300 was due at the time of appointment, and that the party that did not make required and timely deposits would be treated as failing to appear.

    UTCR 13.120 provides:

Within 14 days of the appointment of the arbitrator, each party must tender to the arbitrator a pro rata share of the preliminary payment for the arbitrator.  Any deposit in excess of the arbitrator's actual fee will be refunded to the parties.  Regardless of whether the arbitration hearing is conducted, the parties must pay a proportionate share of the arbitrator's fees.  The arbitrator must submit to each party an itemized statement. [emphasis supplied]

    "Must" is mandatory, Fleming v. USAA, 329 Or 449, 988 P2d 378 (1999).  On the other hand, UTCR 13.120(6) provides:

At the conclusion of the arbitration process, the court may enter a judgment inn the arbitrator's favor and against any party who has not paid the arbitrator's fee in accordance with the schedule established under paragraph (1).

    In my opinion, the rule was drafted to protect the arbitrators.  Most arbitrators are not and should not be interested in becoming a judgment creditor of a participant in an arbitration, nor in instituting proceedings to recover $300.

    The prohibition on play without pay is also not particularly onerous.  Tenant and other defendants can obtain a benefit from not paying the arbitration fee, in that the arbitration is a public hearing and she or her attorney can attend anyway and use the hearing as a form of discovery.  Once a party has filed an answer, a court can only enter a judgment (or award) after hearing evidence in the nature of a prima facie hearing.  Furthermore, such a litigant is not without a remedy, because although if unsuccessful in the arbitration, as she will likely be if she does not participate, she may pay a modest fee to appeal to circuit court (less than the unpaid arbitrator's fee).  Once she does that, she will not need have any fee burden different than any other litigant, and she won't have to pay any trial fees at all, unless Landlord requests a court trial and Tenant requests a jury.

    Finally, except for the habitability issues, the case does not turn on th the testimony of Tenant.
    Therefore, while I allowed Tenant's lawyer to participate in the hearing, I am going to decide this case as if he did not participate. 

    However, I don' t think the outcome will be different, because I must nevertheless decide the case on the evidence and consider the defenses asserted in the pleadings. Failure to appear or pay fees does not constitute a default nor does it result in a pleading being stricken.


    Landlord established that she and Tenant entered into a residential lease for one year beginning April 3, 2009 with rent of $780 per month.  Rent was payable on the first of the month.  There was provision for a payment fees for late payment of rent of $50 as a flat amount or $10 per day beginning on the 10th day of the month.  This is stated in the alternative so it does not make complete sense that two boxes are checked.  There is a $50 fee for bad checks. 

    Paragraph 8 of the lease provides that Tenant received three keys and there was a $50 deposit for the keys. 

    In paragraph 11, Tenant agreed to pay for electricity. 

    Tenant agreed in paragraph 13 to be 'assume all liability for, and to hold landlord harmless from, all damages and all costs and fees in defense thereof, caused by the negligence or willful act of tenant or tenant's invitees or guests, in or upon any part of the premises, and to be responsible for any damage or breakage to tenant's equipment, fixtures or appliances therein or thereon . . . ."

    In paragraph 6, Tenant agreed to 'maintain the premises in a clean and sanitary condition at all times, and upon the termination of the tenancy shall surrender same to landlord in as good condition as when received, ordinary wear and tear and damages by the elements excepted.'  There was no separate cleaning fee charged in the lease but in the pleadings it appears that Tenant acknowledges a $100 cleaning fee deposit.

    Tenant did not pay part of the July rent.  Tenant did not pay rent beginning in October 2009, and vacated December 4, 2009.  Landlord re-rented the residence effective January 6, 2010.

    Taking into consideration the defenses asserted by Tenant, Landlord proved damages of:

-    July 2009 rent: $275
-    October 2009 rent: $780
-    November 2009 rent: $780
-    December 2009 rent through 12/4: 4/31 of $780 = $100.64

    When rent is simply not paid, it is not 'late'.  I don't award late fees.

-    NSF Fee, $50

    Landlord already received $50 for the keys; she is not further damaged.  Her remedy is to retain the key deposit.

-    Rehang light fixture, $50

    I award nothing for electricity, because the two invoices cover the periods from 12/4/2009 to 12/22/2009, and from 12/22/2009 to 1/ 22/2009, and for the reasons explained below I believe Tenant's liability ceases as of 12/4/2009.

    Landlord may be entitled to recover the $28.47 for some other equitable reason, but I don't find a breach of the lease in relation to this item of damage.

-    Replace silverware basket, $32

    Landlord did not request interest.

Against these damages, Landlord has applied the $350 of deposits.

    The total of damages is: $1,717.64

ORS 90.425

    Tenant left a dirty rug on the premises.  Landlord mailed Tenant an Abandoned Property Notice, Exhibit 6.  It was mailed to the Premises, nowhere else, after Tenant left.  It was not returned to Landlord.  ORE 311(1)(q) provides that: "The following are presumptions:  A letter duly directed and mailed was received in the ordinary course of the mail."  The presumption was not rebutted. I find that Tenant received the notice.

    Tenant contends this notice did not satisfy ORS 90.425(3)(b) and she is relieved of responsibility for unpaid rent pursuant to ORS 90.425(17)(a). The latter subsection requires compliance with the former, which requires that the notice be sent by first class mail to the tenant at: a) the premises, b) any PO Box held by the tenant and actually known to the landlord, and c) the most recent forwarding address if provided by the tenant or actually known to the landlord. 

    The notice was mailed to the premises.  The legislature must have included the requirement that the notice be mailed to the premises, even though the tenant is always gone when the notice is mailed, on the assumption that many if not most tenants have their mail forwarded, and if they don't the landlord will receive the notice back in the mail and know that actual notice may not have been achieved.

    There was no evidence that Tenant had a PO Box known to Landlord.  There was no evidence that Tenant provided Landlord a forwarding address or that Landlord knew of one.

    Tenant contended that the notice should also have been sent to her at the address of her parents in suburban Portland, her parents who are listed as references and also as emergency contacts.

    I conclude that an emergency contact name and address is not the same as a forwarding address.  An emergency contact is qualitatively different than a forwarding address, and property left behind, both in general and as applied to this case, is not an emergency. 

    I know and take judicial notice of the fact that most people put in a notice to forward mail with the USPS and the systems work extremely well.  I conclude that mail to the Premises constituted compliance with ORS 90.425(3) and ORS 90.155(1)( c)(A).

    The case cited by Tenant's lawyer, Taylor v. Hayden Island Mobile Home Park, is distinguishable.  ORS 90.425(16) does not apply because this is an action by a landlord against a tenant.  Even if the statute could be applied in reverse, which is not a fair reading of the ORLTA act which is often technically applied, Landlord's actions were 'complete compliance', compare, Tompte v. Stone, 195 Or App 599 (2004).

The habitability defense

    Because Tenant did not testify, there was no evidence to support the defenses related to habitability.

ORS 90.220(9)

    Tenant contends that she is not responsible for rent after October 16, 2009, relying upon ORS 90.220(9).

    Landlord sent a 72 hour notice of non-payment of rent on October 13, 2009.  The notice was defective because not both nailed and mailed, but Tenant has not contended that the notice was defective. To the contrary, she relies on it.  My comment is; the notice is not a notice of termination; rather it is a notice of intent to terminate.  'Termination' of a tenancy is a term of art and it is different from a notice of intent to terminate.  Therefore, ORS 90.220(9) does not apply to it.

    Landlord then sent a termination for cause on October 19, which she contends was properly delivered, and it is not disputed that it was properly delivered.  I observe that notice was probably also defective because it provided for cure by November 3, 2009 including on time payment of the November rent by November 1 when, if Tenant had cured the other delinquencies, the November rent would not have been due November 1, but, Tenant does not rely on any defects and in fact she vacated on December 4, 2009, and the property was not relet until January 6, 2010.  Tenant benefits from the earliest possible date that rent ends, and no other part of ORS 90.220(9) gives her a better deal.

    ORS 90.220(9) provides that a tenant is responsible for paying rent until the earlier of among other things, subsection (a), the date that a notice terminating the tenancy expires.  Subsection (a) is inartfully drafted, but, assuming it applies, the termination date was November 19, 2009.  Tenant is responsible for rent at least until then.

    The question is the applicability of ORS 90.427(7).  The relevant portion of that statute provides: "In addition the landlord may recover from the tenant any actual damages resulting from the tenant holding over, including the value of any rent accruing from the expiration or termination of the rental agreement until the landlord knows or should know that the tenant has relinquished possession to the landlord."

    What damages did Landlord have as a result of Tenant holding over?  Clearly, rent from November 19 to and including December 4, 2009.

    What about the lost rent for the period from December 4 to January 6?  Is that element of damage "actually damages resulting from the tenant holding over?"  I think not.  It is damages for breach of the lease, but not for holding over.