71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1431
House Bill 2726
Sponsored by Representative GARDNER; Representatives BACKLUND,
RINGO, TOMEI, Senators BURDICK, COURTNEY, DECKERT
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires certain landlords to provide, install and maintain
window guards when landlord knows or should know that child is
resident or tenant requests window guards. Expands definition of
essential services to include window guards. Defines window
guards.
Authorizes Department of Consumer and Business Services to
impose civil penalty of not more than $10,000 for violation.
Provides for strict liability of landlord and punitive damages
against landlord.
A BILL FOR AN ACT
Relating to window guards; creating new provisions; and amending
ORS 90.100.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 6 of this 2001 Act are added to
and made a part of ORS chapter 90. + }
SECTION 2. { + (1) A landlord shall provide, install and
maintain window guards on the windows of the dwelling unit of a
tenant and on the windows of public areas of the residential
building of a tenant if:
(a)(A) The landlord owns, manages or controls at least two
residential buildings leased or offered to lease; or
(B) The landlord owns, manages or controls a single building
containing four or more individual dwelling units; and
(b)(A) The landlord knows or should know that a child less than
11 years of age is a part-time or full-time resident of the
dwelling unit; or
(B) A tenant makes a written request for window guards.
(2) Notwithstanding subsection (1) of this section, a landlord
is not required to provide, install and maintain window guards on
the basement or first floor level of a building or on windows
providing access to fire escapes. + }
SECTION 3. { + (1) A landlord subject to section 2 of this
2001 Act shall provide all tenants with written notice of the
requirements of section 2 of this 2001 Act in accordance with ORS
90.155. The landlord must provide written notice no later than 30
days after the initial lease signing for a new tenant and
annually for all tenants living in dwelling units that do not
have window guards and are not exempt from the requirements of
section 2 of this 2001 Act. The landlord shall provide the annual
notice no later than January 16 of each calendar year. Initial
and annual written notices must contain:
(a) The title 'Window Guards Required' in at least 10-point
type;
(b) A description of sections 2, 4 and 6 of this 2001 Act using
words in their common and everyday meanings;
(c) A place for the tenant to indicate by signature or initials
whether the tenant wants window guards installed; and
(d) A statement that the landlord is liable for injury, death
or damage preventable by the provision, installation and
maintenance of window guards only if:
(A) The landlord knows or should know that a child less than 11
years of age is a part-time or full-time resident of the dwelling
unit where the injury, death or damage occurs or of the building
having a common area where the injury, death or damage occurs;
(B) The tenant of the dwelling unit where the injury, death or
damage occurs or of the building having a common area where the
injury, death or damage occurs has returned a notice or otherwise
made a written indication that the tenant wants window guards
installed and the landlord receives the notice or other written
indication and has had a reasonable amount of time to act on the
request prior to the date of injury, death or damage; or
(C) The tenant has not rendered the window guards ineffective.
(2) A landlord subject to section 2 of this 2001 Act shall not
indicate to a tenant that the provision, installation and
maintenance of window guards is:
(a) Dependent on payment of a fee or charge by the tenant; or
(b) Optional if the provision, installation and maintenance of
window guards is required under section 2 of this 2001 Act.
(3) A landlord is liable for injury, death or damage
preventable by the provision, installation and maintenance of
window guards only if:
(a) The landlord knows or should know that a child less than 11
years of age is a part-time or full-time resident of the dwelling
unit where the injury, death or damage occurs or of the building
having a common area where the injury, death or damage occurs;
(b) The tenant of the dwelling unit where the injury, death or
damage occurs or of the building having a common area where the
injury, death or damage occurs has returned a notice or otherwise
made a written indication that the tenant wants window guards
installed and the landlord receives the notice or other written
indication and has had a reasonable amount of time to act on the
request prior to the date of injury, death or damage; or
(C) The tenant has not rendered the window guards
ineffective. + }
SECTION 4. { + (1) Landlords subject to section 2 of this 2001
Act may have access to the dwelling unit of a tenant in
accordance with ORS 90.322 for the purpose of providing,
installing and maintaining window guards.
(2) Notwithstanding ORS 90.322 (7), refusal by the tenant to
allow lawful access to the landlord under subsection (1) of this
section is not grounds for termination of the rental agreement
and taking possession by the landlord.
(3) Notwithstanding section 3 (3) of this 2001 Act, a landlord
is not liable for injury, death or damage preventable by the
provision, installation and maintenance of window guards in the
dwelling unit of a tenant if:
(a) The tenant refuses the landlord lawful access under
subsection (1) of this section; and
(b) The landlord seeks injunctive relief to compel access under
ORS 90.322 (7). + }
SECTION 5. { + (1) The Department of Consumer and Business
Services may adopt rules establishing standards for window
guards. In adopting rules for window guard standards, the
department may give consideration to the standards established by
the American Society for Testing and Materials.
(2) The department shall adopt rules making failure to provide,
install and maintain window guards as required by section 2 of
this 2001 Act a violation of the state building code.
(3) Notwithstanding the maximum amount established in ORS
455.895, a building code violation resulting from the failure of
a landlord subject to section 2 of this 2001 Act to comply with
section 2 of this 2001 Act is subject to a civil penalty, not to
exceed $10,000. A civil penalty shall be imposed as provided in
ORS 183.090. + }
SECTION 6. { + (1) Subject to sections 3 (3) and 4 (3) of this
2001 Act, in addition to the provisions of ORS 90.365, a landlord
subject to section 2 of this 2001 Act is strictly liable for any
injury, death or damage preventable by the provision,
installation and maintenance of window guards.
(2) Subject to sections 3 (3) and 4 (3) of this 2001 Act, in
addition to the provisions of ORS 90.365, failure of a landlord
subject to section 2 of this 2001 Act to comply with section 2 of
this 2001 Act is sufficient to support a claim for punitive
damages against the landlord for injury, death or damage
preventable by the provision, installation and maintenance of
window guards.
(3) ORS 12.125 does not apply to actions arising under section
2 of this 2001 Act. + }
SECTION 7. ORS 90.100 is amended to read:
90.100. Subject to additional definitions contained in this
chapter that apply to specific sections or parts thereof, and
unless the context otherwise requires, in this chapter:
(1) 'Accessory building or structure' means any portable,
demountable or permanent structure, including but not limited to
cabanas, ramadas, storage sheds, garages, awnings, carports,
decks, steps, ramps, piers and pilings, that is:
(a) Owned and used solely by a tenant of a manufactured
dwelling or floating home; or
(b) Provided pursuant to a written rental agreement for the
sole use of and maintenance by a tenant of a manufactured
dwelling or floating home.
(2) 'Action' includes recoupment, counterclaim, setoff, suit in
equity and any other proceeding in which rights are determined,
including an action for possession.
(3) 'Applicant screening charge' means any payment of money
required by a landlord of an applicant prior to entering into a
rental agreement with that applicant for a residential dwelling
unit, the purpose of which is to pay the cost of processing an
application for a rental agreement for a residential dwelling
unit.
(4) 'Building and housing codes' include any law, ordinance or
governmental regulation concerning fitness for habitation, or the
construction, maintenance, operation, occupancy, use or
appearance of any premises or dwelling unit.
(5) 'Dealer' means any person in the business of selling,
leasing or distributing new or used manufactured dwellings or
floating homes to persons who purchase or lease a manufactured
dwelling or floating home for use as a residence.
(6) 'Drug and alcohol free housing' means a rental agreement as
described in ORS 90.243.
(7) 'Dwelling unit' means a structure or the part of a
structure that is used as a home, residence or sleeping place by
one person who maintains a household or by two or more persons
who maintain a common household. 'Dwelling unit' regarding a
person who rents a space for a manufactured dwelling or
recreational vehicle or regarding a person who rents moorage
space for a floating home as defined in ORS 830.700, but does not
rent the home, means the space rented and not the manufactured
dwelling, recreational vehicle or floating home itself.
(8) 'Essential service' means:
(a) For a tenancy not consisting of rental space for a
manufactured dwelling, floating home or recreational vehicle
owned by the tenant and not otherwise subject to ORS 90.505 to
90.840:
(A) Heat, plumbing, hot and cold running water, gas,
electricity, light fixtures, locks for exterior doors, latches
for windows { + , window guards if required under section 2 of
this 2001 Act, + } and any cooking appliance or refrigerator
supplied or required to be supplied by the landlord; and
(B) Any other service or habitability obligation imposed by the
rental agreement or ORS 90.320, the lack or violation of which
creates a serious threat to the tenant's health, safety or
property or makes the dwelling unit unfit for occupancy.
(b) For a tenancy consisting of rental space for a manufactured
dwelling, floating home or recreational vehicle owned by the
tenant or that is otherwise subject to ORS 90.505 to 90.840:
(A) Sewage disposal, water supply, electrical supply and, if
required by applicable law, any drainage system; and
(B) Any other service or habitability obligation imposed by the
rental agreement or ORS 90.730, the lack or violation of which
creates a serious threat to the tenant's health, safety or
property or makes the rented space unfit for occupancy.
(9) 'Facility' means:
(a) A place where four or more manufactured dwellings are
located, the primary purpose of which is to rent space or keep
space for rent to any person for a fee; or
(b) A moorage of contiguous dwelling units that may be legally
transferred as a single unit and are owned by one person where
four or more floating homes are secured, the primary purpose of
which is to rent space or keep space for rent to any person for a
fee.
(10) 'Facility purchase association' means a group of three or
more tenants who reside in a facility and have organized for the
purpose of eventual purchase of the facility.
(11) 'Fee' means a nonrefundable payment of money.
(12) 'First class mail' does not include certified or
registered mail, or any other form of mail that may delay or
hinder actual delivery of mail to the recipient.
(13) 'Floating home' has the meaning given that term in ORS
830.700. As used in this chapter, 'floating home' includes an
accessory building or structure.
(14) 'Good faith' means honesty in fact in the conduct of the
transaction concerned.
(15) 'Hotel or motel' means 'hotel' as that term is defined in
ORS 699.005.
(16) 'Informal dispute resolution' means, but is not limited
to, consultation between the landlord or landlord's agent and one
or more tenants, or mediation utilizing the services of a third
party.
(17) 'Landlord' means the owner, lessor or sublessor of the
dwelling unit or the building or premises of which it is a part.
' Landlord' includes a person who is authorized by the owner,
lessor or sublessor to manage the premises or to enter into a
rental agreement.
(18) 'Landlord's agent' means a person who has oral or written
authority, either express or implied, to act for or on behalf of
a landlord.
(19) 'Last month's rent deposit' means a type of security
deposit, however designated, the primary function of which is to
secure the payment of rent for the last month of the tenancy.
(20) 'Manufactured dwelling' means a residential trailer, a
mobile home or a manufactured home as those terms are defined in
ORS 446.003 (26). 'Manufactured dwelling' includes an accessory
building or structure. 'Manufactured dwelling' does not include a
recreational vehicle.
(21) 'Manufactured dwelling park' has the meaning given that
term in ORS 446.003.
(22) 'Organization' includes a corporation, government,
governmental subdivision or agency, business trust, estate,
trust, partnership or association, two or more persons having a
joint or common interest, and any other legal or commercial
entity.
(23) 'Owner' includes a mortgagee in possession and means one
or more persons, jointly or severally, in whom is vested:
(a) All or part of the legal title to property; or
(b) All or part of the beneficial ownership and a right to
present use and enjoyment of the premises.
(24) 'Person' includes an individual or organization.
(25) 'Premises' means a dwelling unit and the structure of
which it is a part and facilities and appurtenances therein and
grounds, areas and facilities held out for the use of tenants
generally or whose use is promised to the tenant.
(26) 'Prepaid rent' means any payment of money to the landlord
for a rent obligation not yet due. In addition, 'prepaid rent'
means rent paid for a period extending beyond a termination date.
(27) 'Recreational vehicle' has the meaning given that term in
ORS 446.003.
(28) 'Rent' means any payment to be made to the landlord under
the rental agreement, periodic or otherwise, in exchange for the
right of a tenant and any permitted pet to occupy a dwelling unit
to the exclusion of others. 'Rent' does not include security
deposits, fees or utility or service charges as described in ORS
90.315 (4) and 90.510 (8).
(29) 'Rental agreement' means all agreements, written or oral,
and valid rules and regulations adopted under ORS 90.262 or
90.510 (6) embodying the terms and conditions concerning the use
and occupancy of a dwelling unit and premises. 'Rental agreement'
includes a lease. A rental agreement shall be either a
week-to-week tenancy, month-to-month tenancy or fixed term
tenancy.
(30) 'Roomer' means a person occupying a dwelling unit that
does not include a toilet and either a bathtub or a shower and a
refrigerator, stove and kitchen, all provided by the landlord,
and where one or more of these facilities are used in common by
occupants in the structure.
(31) 'Screening or admission criteria' means a written
statement of any factors a landlord considers in deciding whether
to accept or reject an applicant and any qualifications required
for acceptance. 'Screening or admission criteria' includes, but
is not limited to, the rental history, character references,
public records, criminal records, credit reports, credit
references and incomes or resources of the applicant.
(32) 'Security deposit' means any refundable payment or deposit
of money, however designated, the primary function of which is to
secure the performance of a rental agreement or any part of a
rental agreement, but does not mean a fee.
(33) 'Squatter' means a person occupying a dwelling unit who is
not so entitled under a rental agreement or who is not authorized
by the tenant to occupy that dwelling unit. ' Squatter' does not
include a tenant who holds over as described in ORS 90.427 (4).
(34) 'Statement of policy' means the summary explanation of
information and facility policies to be provided to prospective
and existing tenants under ORS 90.510.
(35) 'Surrender' means an agreement, express or implied, as
described in ORS 90.148 between a landlord and tenant to
terminate a rental agreement that gave the tenant the right to
occupy a dwelling unit.
(36) 'Tenant' means a person, including a roomer, entitled
under a rental agreement to occupy a dwelling unit to the
exclusion of others, including a dwelling unit owned, operated or
controlled by a public housing authority. 'Tenant' also includes
a minor, as defined and provided for in ORS 109.697. As used in
ORS 90.505 to 90.840, 'tenant' includes only a person who owns
and occupies as a residence a manufactured dwelling or a floating
home in a facility and persons residing with that tenant under
the terms of the rental agreement.
(37) 'Transient lodging' means a room or a suite of rooms.
(38) 'Transient occupancy' means occupancy in transient lodging
that has all of the following characteristics:
(a) Occupancy is charged on a daily basis and is not collected
more than six days in advance;
(b) The lodging operator provides maid and linen service daily
or every two days as part of the regularly charged cost of
occupancy; and
(c) The period of occupancy does not exceed 30 days.
(39) 'Vacation occupancy' means occupancy in a dwelling unit,
not including transient occupancy in a hotel or motel, that has
all of the following characteristics:
(a) The occupant rents the unit for vacation purposes only, not
as a principal residence;
(b) The occupant has a principal residence other than at the
unit; and
(c) The period of authorized occupancy does not exceed 45 days.
(40) 'Week-to-week tenancy' means a tenancy that has all of the
following characteristics:
(a) Occupancy is charged on a weekly basis and is payable no
less frequently than every seven days;
(b) There is a written rental agreement that defines the
landlord's and the tenant's rights and responsibilities under
this chapter; and
(c) There are no fees or security deposits, although the
landlord may require the payment of an applicant screening
charge, as provided in ORS 90.295.
{ + (41) 'Window guard' means a window safety device that
meets the standards established by Department of Consumer and
Business Services rule under section 5 of this 2001 Act. + }
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