KKMH Properties, LLC v. Shire

“If the violation described in the notice can be cured by the tenant by a change in conduct, repairs, payment of money or otherwise, the rental agreement does not terminate if the tenant cures the violation by the designated date. The designated date must be: (A) At least 14 days after delivery of the notice…” ORS 90.392(4)(a).

The tenant, ("Defendant"), appealed the trial court’s judgment awarding possession of the premises to the landlord ("Plaintiff"). According to Defendant, the trial court erred in denying Defendant’s motion to dismiss, because the notice of termination of the tenancy did not include a notice of an opportunity to cure the violation of the rental agreement. Defendant argued that under ORS 90.392, whether a violation is curable is "objective," meaning that if the violation is potentially curable the tenant must always be given notice of an opportunity to cure in accordance with ORS 90.392(4)(a). Plaintiff responded that ORS 90.392 unambiguously provides the landlord can make a "subjective" determination whether or not notice is required if the violation is curable. The Court found that the correct construction was somewhere between both party’s interpretations. The Court found that the damage could be cured by one of the means, but it could not be cured within the minimum 14-day period, thereby excusing the requirement to give notice. Thus, the Court held that the requirement to give notice is dependent on landlord’s assessment whether the violation is one that reasonably can be cured within the minimum time period required. Affirmed.