They contend the property was uninhabitable and, as a matter of law, had a fair rental value of $0. The fair rental value of a property is a factual determination. See CSA 13-101 Loop, LLC v. Loop 101, LLC, 233 Ariz. 355, ¶ 25, 312 P.3d 1121, 1128-29 (App. 2013); see also L & M Inv. Co. v. Morrison, 605 P.2d 1347, 1349-50 (Or. App. 1980) (diminution in fair rental value a factual determination based on evidence presented). We therefore defer to the court's finding on that issue.

We conclude that the trial court erred when it ruled that tenant was not entitled to possession of the leased premises under ORS 90.370(1)(b) because no rent was ordered to be paid into court and "the damages awarded the tenant on her counterclaims exceeded the amount of unpaid rent the landlord claimed was due." L & M Investment Co. v. Morrison , 44 Or. App. 309, 313, 605 P.2d 1347, rev. den. , 289 Or. 275 (1980). Consequently, we reverse and remand for entry of judgment for tenant on the right to possession.

"* * * Of course you know I am sitting here as trier of fact as well as trier of law. * * * There has been no proof at all of the reasonable rental value of the premises before or after. * * * But there has simply been a failure of proof and that is the basis for my ruling on these motions." Plaintiff relies on our decision in L M Investment Co. v. Morrison, 44 Or. App. 309, 605 P.2d 1347, rev den 289 Or. 275 (1980). In that case, we considered the question of damages and said:

The court also cited a prior Alaska case, see id., which indicated that Alaska's counterpart to section 562A.15(3) “governs landlords' attempts to shift duties such as the maintenance of common areas [found in the counterpart to Iowa Code section 562A.15(1)(b ) ] to tenants,” Coburn v. Burton, 790 P.2d 1355, 1357 (Alaska 1990).Similarly, in L & M Investment Co. v. Morrison, 44 Or.App. 309, 605 P.2d 1347, 1350 (1980), the court cited Oregon's counterpart to section 562A.15(1) and said, “[I]t is presumed that the stated rental is for premises in a habitable condition and the landlord is estopped from contending otherwise, at least in the absence of an express written agreement pursuant to [Oregon's counterpart to section 562A.15(3) ].”In Graber v. Engstrom, 384 N.W.2d 307, 308 (N.D.1986), there was a scenario like the present one where the landlord of a single-family residence (a mobile home) argued that the lease had transferred certain habitability obligations to the tenant including the obligation to repair a broken window.

A tenant is entitled to damages for the entire period during which the landlord fails to maintain the premises in a habitable condition, after notice. In L M Investment Co. v. Morrison, 44 Or. App. 309, 605 P.2d 1347 (1980), we upheld an award for diminution in rental value through the time when the required repairs were made. A similar award in this case would include $60 for January. The trial court erred in failing to do that. The effect of increasing tenant's damages to $300 is to offset completely the rent that she owed, so that she owed nothing at the time of trial.

Plaintiff testified that the diminished rental value of the dwelling was $100 a month. As this court stated in L M Investment Co. v. Morrison, 44 Or. App. 309, 312, 605 P.2d 1347, rev den 289 Or. 275 (1980): "Because the Act requires the landlord to maintain the premises in a habitable condition, ORS 91.770(1), it is presumed that the stated rental is for premises in a habitable condition and the landlord is estopped from contending otherwise.

We have previously construed "applicable law" in ORS 91.770(1) to include housing codes that apply to the particular dwelling. L M Investment Co. v. Morrison, 44 Or. App. 309, 315, 605 P.2d 1347, rev den 289 Or. 275 (1980). ORS 537.130 concerns the appropriation of water; its focus is on the acquisition of a property right to use water, rather than on water quality.