US Laws, Codes, Statutes & Cases

Chapter 105 — Property Rights

 

2005 EDITION

 

 

PROPERTY RIGHTS

 

PROPERTY RIGHTS AND TRANSACTIONS

 

ACTIONS FOR RECOVERY OF REAL PROPERTY

 

105.005     Right of action; recovery; damages

 

105.010     Contents of complaint

 

105.015     Answer

 

105.020     Substitution of landlord for tenant

 

105.025     Verdict

 

105.030     Damages for withholding; setoff for improvements

 

105.035     Judgment when plaintiff’s right to possession expires

 

105.040     Order to make survey

 

105.045     Action not prejudiced by alienation by person in possession

 

105.050     Cotenant shall prove ouster

 

105.055     Conclusiveness of judgment

 

105.060     Effect of new trial on plaintiff’s possession

 

105.070     Rights of donee under Donation Law

 

105.075     Notice to quit; action to recover possession not affected by forcible entry or wrongful detainer

 

105.080     Reimbursement of tenants in common obtaining possession; lien

 

FORCIBLE ENTRY AND WRONGFUL DETAINER

 

105.105     Entry to be lawful and peaceable only

 

105.110     Action for forcible entry or wrongful detainer

 

105.111     Stay of eviction for state service member

 

105.112     Action by tenant to recover personal property; forms

 

105.113     Form of summons

 

105.115     Causes of unlawful holding by force; action for return of possession

 

105.120     Notice necessary to maintain action in certain cases; waiver of notice; effect of advance payments of rent

 

105.123     Complaint

 

105.124     Form of complaint if ORS chapter 90 applies

 

105.126     Form of complaint if ORS chapter 90 does not apply

 

105.130     How action conducted; fees; surcharge

 

105.132     Assertion of counterclaim

 

105.135     Service and return of summons; posting; contents

 

105.137     Effect of failure of party to appear; appearance by attorney; scheduling of trial; unrepresented defendant

 

105.138     Compelling arbitration; procedure

 

105.139     Burden of proof in certain cases

 

105.140     Continuance

 

105.145     Judgment on trial by court; duties of parties to stipulated agreement

 

105.146     Failure of defendant to perform as ordered; judgment of restitution

 

105.148     Contesting plaintiff’s affidavit of noncompliance; ex parte review of hearing request; delaying execution upon judgment of restitution

 

105.149     Hearing on compliance with order

 

105.151     Enforcement of judgment of restitution; notice of restitution

 

105.152     Form of notice of restitution for judgment entered under ORS 105.146

 

105.153     Form of notice of restitution for judgment not entered under ORS 105.146

 

105.156     Form of writ of execution for judgment of restitution

 

105.157     Form of eviction trespass notice

 

105.158     Service of notice of restitution

 

105.159     Computation of time before plaintiff may request writ of execution

 

105.161     Service and enforcement of writ of execution and eviction trespass notice

 

105.165     Alternative method of removing, storing and disposing of tenant’s personal property; requirements; landlord liability

 

105.168     Minor as party in proceedings pertaining to residential dwellings

 

EASEMENT OWNER OBLIGATIONS

 

105.170     Definitions for ORS 105.170 to 105.185

 

105.175     Easement to be kept in repair; sharing costs; agreements

 

105.180     Action for failure to comply with duty of holder; recovery of costs; arbitration

 

105.185     Application of ORS 105.170 to 105.185

 

MODIFICATION OF LEASE TERMS

 

105.190     Covenant of good faith and fair dealing; rights and obligations of parties

 

PARTITION

 

105.205     Who may maintain partition

 

105.210     When and how partition prevented

 

105.215     Complaint

 

105.220     Tenants and lien creditors as defendants; liens on undivided interests

 

105.225     Summons; to whom directed

 

105.230     Service by publication

 

105.235     Answer

 

105.240     Rights determinable; ascertainment of title where defendant defaults or sale is necessary

 

105.245     Sale or partition ordered by court

 

105.250     Compensation when equal partition cannot be made

 

105.255     How referees make partition; report

 

105.260     Power of court over report; final judgment

 

105.265     Persons not affected by judgment

 

105.270     Order of sale on referees’ report

 

105.275     Conclusiveness of order confirming report

 

105.280     How sale made; notice of sale

 

105.285     Distribution of proceeds of sale

 

105.290     Distribution of proceeds by referee or payment into court

 

105.295     Continuance of suit after proceeds paid into court

 

105.300     When lienholder has other securities

 

105.305     Credit allowed

 

105.310     Setting off estate for life or years in part not sold

 

105.315     Disposition of life estate or leasehold

 

105.320     Compensation of tenants in case of sale

 

105.325     When court determines value of tenancy

 

105.330     Rules for determining value of certain estates

 

105.335     Protection of unknown tenants

 

105.340     Provision for future rights or interests

 

105.345     Notice of terms of sale; separate sale of distinct parcels

 

105.350     Purchase by referee, conservator or guardian forbidden

 

105.355     Report of sale

 

105.360     Exception to report; confirmation of sale; order of confirmation

 

105.365     Purchase by encumbrancer or party entitled to share

 

105.370     Investment of proceeds for certain parties

 

105.375     In whose name securities taken or investments made

 

105.380     When securities are payable to parties

 

105.385     Clerk’s treatment of securities and investments

 

105.390     When proceeds paid to conservator or guardian of infant

 

105.395     Payment of proceeds to conservator of incapacitated person

 

105.400     When conservator or guardian may consent to partition

 

105.405     Costs and expenses of partition

 

HOUSING RECEIVERSHIP

 

105.420     Findings; policy

 

105.425     Definitions for ORS 105.420 to 105.445 and 105.455

 

105.430     Receivership for buildings that constitute threat to public health, safety or welfare; procedure

 

105.435     Authority of receiver; financing agreements; fee; abatement work exempt from public contracting law

 

105.440     Review of abatement expenditures by court; lien for unpaid expenses

 

105.445     Effect on purchase money security interest of lien for unpaid abatement expenses

 

105.450     Termination of receivership

 

105.455     Short title

 

SELLER’S PROPERTY

DISCLOSURE STATEMENT

 

105.462     Definitions for ORS 105.462 to 105.490

 

105.464     Form of seller’s property disclosure statement

 

105.465     Application of ORS 105.462 to 105.490, 696.301 and 696.870; disclosure statement

 

105.470     Exclusions from ORS 105.462 to 105.490, 696.301 and 696.870

 

105.475     Buyer’s statement of revocation of offer; criteria

 

105.480     Representations in disclosure statement; application

 

105.485     Allocation of burden of proof

 

105.490     Effect of ORS 105.462 to 105.490, 696.301 and 696.870 on rights and remedies

 

ACTIONS AND SUITS FOR NUISANCES

 

105.505     Remedies available for private nuisance

 

105.510     Procedure for abating a nuisance

 

105.515     Stay of issuance of warrant to abate

 

105.520     Justification of sureties; proceedings when nuisance is not abated

 

ABATEMENT OF NUISANCE ACTIVITIES OR CONDITIONS

 

105.550     Definitions for ORS 105.550 to 105.600

 

105.555     Places declared nuisances subject to abatement

 

105.560     Action to restrain or enjoin nuisance; jurisdiction; remedies

 

105.565     Complaint; service; jury trial; admissibility of reputation as evidence

 

105.575     Precedence of action on court docket

 

105.580     Order of abatement; cancellation

 

105.585     Costs of securing property as lien; priority of lien; filing notice of pendency

 

105.590     Intentional violation of order punishable as contempt; fine; imprisonment

 

105.595     Action to abate nuisance not to affect other remedies; exception

 

105.600     ORS 105.550 to 105.600 not to limit authority of cities or counties to further restrict activities

 

SUITS TO QUIET TITLE AND REMOVE CLOUD

 

105.605     Suits to determine adverse claims

 

105.610     Suit to cancel patent of donee under Donation Law

 

105.615     Action by tenant in common against cotenants

 

105.620     Acquiring title by adverse possession

 

UNIFORM DISCLAIMER OF PROPERTY INTERESTS

 

105.623     Short title

 

105.624     Definitions for ORS 105.623 to 105.649

 

105.626     Scope

 

105.628     Effect on other law

 

105.629     Power to disclaim; general requirements; when irrevocable

 

105.633     Disclaimer of interest in property

 

105.634     Disclaimer of rights of survivorship in jointly held property

 

105.636     Disclaimer of interest by trustee

 

105.638     Disclaimer of power of appointment or other power not held in fiduciary capacity

 

105.639     Disclaimer by appointee, object or taker in default of exercise of power of appointment

 

105.641     Disclaimer of power held in fiduciary capacity

 

105.642     Delivery or filing

 

105.643     When disclaimer barred or limited

 

105.645     Tax qualified disclaimer

 

105.646     Recording of disclaimer

 

105.647     Application to existing relationships

 

105.648     Effect on recovery of money or property under ORS 411.620

 

105.649     Uniformity of application and construction

 

PUBLIC USE OF LANDS

 

105.672     Definitions for ORS 105.672 to 105.696

 

105.676     Public policy

 

105.682     Liabilities of owner of land used by public for recreational purposes, woodcutting or harvest of special forest products

 

105.688     Applicability of immunities from liability for owner of land; restrictions

 

105.692     No right to continued use of land if owner of land permits use of land; no presumption of dedication or other rights

 

105.696     No duty of care or liability created; exercise of care still required of person using land

 

105.699     Rules applicable to state lands

 

105.700     Prohibiting public access to private land; notice requirements; damages

 

ACTION TO ESTABLISH BOUNDARY

 

105.705     Right to bring action; filing of judgment

 

105.710     Pleadings

 

105.715     Mode of proceeding

 

105.718     Procedure for determining location of public land survey corner

 

105.720     Oath and report of commissioners

 

105.725     Proceedings on motion to confirm report

 

ACTIONS BASED ON CHANGE OF GRADE

 

105.755     State liability for damages resulting from change of grade of roads other than city streets; proceedings on cause of action; limitation

 

105.760     State or county liability for damages resulting from change of grade of streets; proceedings on cause of action

 

EXTINGUISHMENT OF FUTURE INTERESTS

 

105.770     Failure of contingency; application of extinguishment

 

105.772     Preservation of future interests; filing of notice of intent required; limitation

 

105.774     Exclusions from application of ORS 105.770 and 105.772

 

MISCELLANEOUS ACTIONS

 

105.805     Action for waste

 

105.810     Treble damages for injury to or removal of produce, trees or shrubs; costs and attorney fees; limitation on liability of contract logger

 

105.815     When double damages are awarded for trespass; exception

 

105.820     Remedy of tenants in common

 

105.825     Action for injury to inheritance

 

105.831     Damages for injury to mining claim

 

ACTION FOR REDUCED COMMERCIAL PROPERTY VALUE RESULTING FROM STREET USE RESTRICTION

 

105.850     Commercial property defined

 

105.855     Requirement to compensate commercial property owners for reduced value of property caused by street use restriction; effect of other access to property

 

105.860     Cause of action against city for compensation; appeal procedure; intervention

 

105.865     Apportioning compensation among property owners; termination of city liability

 

105.870     Limitation on commencement of action

 

SOLAR ENERGY EASEMENTS

 

105.880     Conveyance prohibiting use of solar energy systems void

 

105.885     Definitions for ORS 105.885 to 105.895

 

105.890     Solar energy easement appurtenant; termination

 

105.895     Requirements for easement creation by instrument; recordation

 

WIND ENERGY EASEMENTS

 

105.900     “Wind energy easement” defined

 

105.905     Wind energy easement appurtenant; termination

 

105.910     Requirements for easement creation by instrument; recordation

 

105.915     Instrument creating lease or lease option of real property for wind energy conversion system may be recorded; requirements

 

PERSONAL PROPERTY RIGHTS

 

105.920     Joint tenancy in personal property; creation

 

RULE AGAINST PERPETUITIES

 

105.950     Statutory rule against perpetuities

 

105.955     When nonvested property interest or power of appointment created

 

105.960     Reformation

 

105.965     Exclusions from statutory rule against perpetuities

 

105.970     Prospective application

 

105.975     Short title; application and construction; supersession and repeal of common law

 

ACTIONS FOR RECOVERY OF REAL PROPERTY

 

      105.005 Right of action; recovery; damages. (1) Any person who has a legal estate in real property and a present right to the possession of the property, may recover possession of the property, with damages for withholding possession, by an action at law. The action shall be commenced against the person in the actual possession of the property at the time, or if the property is not in the actual possession of anyone, then against the person acting as the owner of the property.

      (2) In an action brought under subsection (1) of this section or in a separate action for damages only, a person who, throughout the vesting period, used or occupied land of another with the honest and objectively reasonable belief that the person was the actual legal owner of the land shall not be liable for:

      (a) Double or treble damages under ORS 105.810 (1) to (3) or 105.815; or

      (b) The value of the use or occupation of the land by the person throughout the vesting period. [Amended by 1989 c.1069 §2; 1991 c.109 §1; 1999 c.544 §3]

 

      105.010 Contents of complaint. The plaintiff in the complaint shall set forth:

      (1) The nature of the estate of the plaintiff in the property, whether it be in fee, for life, or for a term of years; including, when necessary, for whose life and the duration of the term.

      (2) That the plaintiff is entitled to the possession thereof.

      (3) That the defendant wrongfully withholds the property from the plaintiff to the damage of the plaintiff for such sum as is therein claimed.

      (4) A description of the property with such certainty as to enable the possession thereof to be delivered if there is recovery.

 

      105.015 Answer. The defendant shall not be allowed to give in evidence any estate, license or right of possession in the property in the defendant or another, unless the same is pleaded in the answer. If pleaded, the nature and duration of the estate, license or right of possession shall be set forth with the certainty and particularity required in a complaint. If the defendant does not defend for the whole of the property, the defendant shall specify for what particular part the defendant does defend.

 

      105.020 Substitution of landlord for tenant. A defendant who is in actual possession may, for answer, plead that the defendant is in possession only as tenant of another; naming the landlord and the place of residence of the landlord. Thereupon the landlord, if the landlord applies therefor, shall be made defendant in place of the tenant and the action shall proceed in all respects as if originally commenced against the landlord. If the landlord does not apply to be made defendant within the day the tenant is allowed to answer, the landlord shall not be allowed to, but shall be made defendant if the plaintiff requires it. If the landlord is made defendant on motion of the plaintiff the landlord shall be required to appear and answer within 10 days from notice of the pendency of the action and the order making the landlord defendant, or such further notice as the court or judge thereof may prescribe.

 

      105.025 Verdict. The jury by their verdict shall find as follows:

      (1) If the verdict is for the plaintiff, that the plaintiff is entitled to the possession of all or a part of the property described in the complaint, or that the plaintiff owns an undivided share or interest in all or a part of the property; including the nature and duration of the estate of the plaintiff in such property.

      (2) If the verdict is for the defendant, that the plaintiff is not entitled to the possession of the property described in the complaint, or the part that the defendant defends, and the estate, license or right to possession in such property established on the trial by the defendant, if any, as the same is required to be pleaded.

 

      105.030 Damages for withholding; setoff for improvements. The plaintiff shall only be entitled to recover damages for withholding the property for the term of six years next preceding the commencement of the action, and for any period that may elapse from the commencement to the time of giving a verdict, excluding the value of the use of permanent improvements made by the defendant. When permanent improvements have been made upon the property by the defendant, or those under whom the defendant claims, while holding under color of title in good faith and adverse to the claim of the plaintiff, the value of the improvements at the time of trial shall be allowed as a setoff against such damages.

 

      105.035 Judgment when plaintiff’s right to possession expires. If the right of the plaintiff to the possession of the property expires after the commencement of the action and before the trial, the verdict shall be given according to the fact and judgment shall be given only for the damages.

 

      105.040 Order to make survey. (1) The court or judge thereof may, on motion, and after notice to the adverse party, or cause shown, grant an order allowing the party applying therefor to enter upon the property in controversy and make survey and admeasurement thereof for the purposes of the action.

      (2) The order shall describe the property. A copy of the order shall be served upon the defendant, and thereupon the party may enter upon the property, and make the survey and admeasurement. If any unnecessary injury is done to the premises, the applying party is liable therefor.

 

      105.045 Action not prejudiced by alienation by person in possession. An action for the recovery of the possession of real property against a person in possession is not prejudiced by any alienation made by such person, either before or after the commencement of the action. If the alienation is made after the commencement of the action, and the defendant does not satisfy the judgment recovered for damages for withholding the possession, the damages may be recovered by action against the purchaser.

 

      105.050 Cotenant shall prove ouster. In an action by a tenant in common of real property against a cotenant, the plaintiff shall show, in addition to the evidence of right of possession, that the defendant either denied the plaintiff’s right or did some act amounting to a denial. [Amended by 1969 c.591 §281]

 

      105.055 Conclusiveness of judgment. (1) Except as provided in subsection (2) of this section, the judgment in an action to recover the possession of real property is conclusive as to the estate in the property and the right to the possession thereof, so far as the same is thereby determined, upon the party against whom the judgment is given, and against all persons claiming from, through or under such party, after the commencement of the action.

      (2) When service of the summons is made by publication and judgment is given for want of an answer, at any time within two years from the entry thereof the defendant or the successor in interest of the defendant as to the whole or any part of the property, shall, upon application to the court or judge thereof, be entitled to an order vacating the judgment and granting the defendant a new trial upon the payment of the costs of the action.

      (3) In an action against a tenant the judgment is conclusive against a landlord, who has been made defendant in place of the tenant, to the same extent as if the action had been originally commenced against the landlord.

 

      105.060 Effect of new trial on plaintiff’s possession. If the plaintiff has taken possession of the property before the judgment is set aside and a new trial granted as provided in ORS 105.055 (2), the possession is not thereby affected in any way. If judgment is given for the defendant in the new trial, the defendant is entitled to restitution by execution in the same manner as if the defendant were plaintiff.

 

      105.065 [Repealed by 1969 c.591 §305]

 

      105.070 Rights of donee under Donation Law. In an action at law for the recovery of the possession of real property, if either party claims the property as a donee of the United States under the Act of Congress approved September 27, 1850, commonly called the Donation Law, or the Acts amendatory thereto, such party from the date of settlement of the party on the property, as provided in said Acts, is deemed to have a legal estate in fee in the property. The estate shall continue upon the condition that the party performs the conditions required by such Acts, and is unconditional and indefeasible after the performance of such condition. If both plaintiff and defendant claim title to the same real property by virtue of settlement under such Acts, the settlement and the performance of the subsequent conditions shall be conclusively presumed in favor of the party having, or claiming under, the elder patent certificate or patent, unless it appears upon the face of such certificate or patent that it is absolutely void.

 

      105.075 Notice to quit; action to recover possession not affected by forcible entry or wrongful detainer. In any action to recover the possession of real property, as provided for in ORS 105.005, notice to quit, when necessary, may be given as prescribed in ORS 91.050 to 91.110 and 105.120. Nothing in ORS 105.105 to 105.168 prevents such action from being maintained for the recovery of the possession of real property although the entry of the defendant is forcible or the holding is unlawful and with force as defined in ORS 105.105.

 

      105.080 Reimbursement of tenants in common obtaining possession; lien. In all cases where property in this state is or has been claimed or owned by residents of this state in common with others, and such residents have obtained or shall obtain the possession of the property at their own cost, expense or labor, they are entitled to reimbursement from the remaining claimant in common of the property, according to their proportionate interest therein. Residents so obtaining possession of such property have a lien upon it until the remaining claimant has paid or tendered such proportionate share of the reasonable costs, expenses or labor aforesaid.

 

FORCIBLE ENTRY AND WRONGFUL DETAINER

 

      105.105 Entry to be lawful and peaceable only. No person shall enter upon any land, tenement or other real property unless the right of entry is given by law. When the right of entry is given by law the entry shall be made in a peaceable manner and without force.

 

      105.110 Action for forcible entry or wrongful detainer. When a forcible entry is made upon any premises, or when an entry is made in a peaceable manner and possession is held by force, the person entitled to the premises may maintain in the county where the property is situated an action to recover the possession of the premises in the circuit court or before any justice of the peace of the county. [Amended by 1985 c.241 §1; 1995 c.658 §68]

 

      105.111 Stay of eviction for state service member. (1) As used in this section, “state service member” means a member of the organized militia who is called into active service of the state by the Governor under ORS 399.065 (1) for 30 or more consecutive days.

      (2) In an action pursuant to ORS 105.110, the court may stay the eviction of the defendant for up to 90 days if:

      (a) The defendant is a state service member;

      (b) The agreed-upon rent does not exceed $1,200 per month; and

      (c) The premises are occupied chiefly for dwelling purposes by the spouse, children or other dependents of the defendant.

      (3) If the defendant requests a stay of the eviction for up to 90 days and the defendant can prove that the ability of the defendant to pay the agreed-upon rent is materially affected by being called into active service, the court may grant the stay of the eviction. [2003 c.387 §7]

 

      Note: 105.111 was added to and made a part of 105.105 to 105.168 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      105.112 Action by tenant to recover personal property; forms. (1) A tenant or former tenant may bring an action to recover personal property taken or retained by a landlord in violation of ORS chapter 90.

      (2) An action under this section shall be governed by the provisions of ORS 105.105 to 105.168 except that:

      (a) The complaint shall be in substantially the following form and shall be available from the court clerk:

______________________________________________________________________________

IN THE _________ COURT FOR

THE COUNTY OF ____________

 

 

(Tenant),                                              )

                        Plaintiff(s),                  )

                                                            )

                        vs.                                )           No.___

                                                            )

(Landlord),                                          )

                                                            )

                        Defendant(s).              )

 

COMPLAINT FOR RETURN

OF PERSONAL PROPERTY

I

 

      Defendant(s) (is) (are) in possession of the following personal property belonging to the plaintiff(s):

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

 

      See attached list.

 

II

      Defendant(s) took the personal property alleged in paragraph I from premises rented by plaintiff(s) from defendant(s) at:

 

______________ (street and number)

 

______________ (city)

 

______________ (county)

 

III

      Plaintiff(s) (is) (are) entitled to possession of the personal property because:

      ______Defendant(s) took the personal property wrongfully because plaintiff(s) had not abandoned the property, and because either there was no court order awarding defendant(s) possession of the premises or the plaintiff(s) (was) (were) not continuously absent from the premises for seven days after such an order when defendant(s) removed the personal property.

      ______Defendant(s) lawfully took possession of the personal property after enforcement of a court order for possession of the premises pursuant to ORS 105.165, but refused to return the personal property to plaintiff(s) without payment although plaintiff(s) demanded return of the property within the time provided by ORS 90.425 or 90.675.

      ______Defendant(s) lawfully took possession of the personal property pursuant to ORS 105.161, but refused to return the personal property to plaintiff(s) although plaintiff(s) offered payment of all sums due for storage and any costs of removal of the personal property and demanded return of the property within the time provided by ORS 90.425 or 90.675.

 

 

 

______Other: ______________

 

______________________________________________________________________________

______________________________________________________________________________

      Wherefore, plaintiff(s) pray(s) for possession of the personal property and costs and disbursements incurred herein.

 

 

________        ______________

Date                Signature of Plaintiff(s)

______________________________________________________________________________

 

      (b) The complaint shall be signed by the plaintiff or an attorney representing the plaintiff as provided by ORCP 17 or verified by an agent or employee of the plaintiff or an agent or employee of an agent of the plaintiff.

      (c) The answer shall be in substantially the following form and shall be available from the court clerk:

______________________________________________________________________________

IN THE _________ COURT FOR

THE COUNTY OF ____________

 

 

(Tenant),                                              )

                                                            )

                        Plaintiff(s),                  )

                                                            )

                        vs.                                )           No.___

                                                            )

(Landlord),                                          )

                                                            )

                        Defendant(s).              )

 

 

ANSWER

      I (we) deny that the plaintiff(s) is (are) entitled to possession of the personal property subject of the complaint because:

      ______The defendant(s) did not take and do not have possession of any of the property listed in the complaint.

      ______The defendant(s) took possession of the personal property as provided in ORS 90.425 or 90.675 after giving written notice that it was considered abandoned, and the plaintiff(s) did not make a timely demand for return of the property.

      ______The defendant(s) took possession of the personal property as provided in ORS 90.425 or 90.675 after giving written notice that it was considered abandoned, but not after a sheriff’s enforcement of an eviction judgment against the plaintiff(s) as provided in ORS 105.165, and the plaintiff(s) refused to pay charges lawfully due for storage.

 

 

 

______Other: ______________

 

______________________________________________________________________________

______________________________________________________________________________

      I (we) ask that the plaintiff(s) take nothing by the complaint and that I (we) be awarded my (our) costs and disbursements.

 

 

________        ______________

Date                Signature of defendant(s)

______________________________________________________________________________

 

      (d) The issue at trial shall be limited to whether the plaintiff is entitled to possession of the personal property listed in the complaint.

      (e) No claim for damages shall be asserted by either party in the action for possession of the personal property under this section, but each party may pursue any claim for damages in a separate action.

      (f) A party may join an action for possession of personal property with an action for damages or a claim for other relief, but the proceeding is not governed by the provisions of ORS 105.105 to 105.168.

      (g) If the court determines that the plaintiff is entitled to possession of the personal property that is the subject of the complaint, the court shall enter an order directing the sheriff to seize the personal property to which the court finds the plaintiff entitled, and to deliver that property to the plaintiff. The court may provide that the defendant have a period of time to deliver the property to the plaintiff voluntarily before execution. The costs of execution may be recovered in the manner provided in ORS 18.999.

      (h) Subject to the provisions of ORCP 68, a prevailing party who has been represented by counsel may recover attorney fees as provided by ORS 90.255. [1989 c.506 §22; 1991 c.67 §21; 1997 c.577 §30; 2001 c.596 §46]

 

      105.113 Form of summons. Notwithstanding ORCP 7 C, for premises to which ORS chapter 90 or ORS 91.120 applies, the summons must be in substantially the following form and be available from the court clerk:

______________________________________________________________________________

IN THE CIRCUIT COURT

FOR THE COUNTY OF

_________

No. _____

 

SUMMONS

RESIDENTIAL EVICTION

 

 

PLAINTIFF (Landlord or agent):

 

___________________________

 

___________________________

 

      vs.

 

DEFENDANT (Tenants/Occupants):

 

___________________________

 

___________________________

 

TO: _______________(Street address and city of property occupied by defendant)

_______________ (Mailing address if different)

 

 

NOTICE TO TENANTS:

READ THESE PAPERS CAREFULLY

YOUR LANDLORD WANTS TO

EVICT YOU

 

ON_________, 2_____ AT _____ A.M./P.M., you must come to the County Court House located at_________. You do not have to pay any fees to the court for this first hearing.

 

      •If you do not appear in court and your landlord does, your landlord will win automatically and can have the Sheriff physically remove you.

 

      •If you do show up in court and your landlord does not, this eviction action will be dropped.

 

      •If both of you show up:

 

•The judge may ask you to try to reach an agreement with your landlord, but this is voluntary. Trained mediators may be available free of charge to help resolve disputes.

 

•The court will schedule a trial if you and your landlord do not reach an agreement or if you do not agree to move out.

 

IF YOU WANT A TRIAL, YOU MUST:

 

      •Show up in court at the time scheduled above;

 

•On the same day, file an Answer with the Court giving a legal reason why you should not be evicted (the Court can give you a form);

 

      •Give a copy of the Answer to your landlord (or your landlord’s agent or attorney); and

 

•Pay a filing fee of $_____ (the judge may allow payment to be deferred in certain circumstances).

 

IF YOU HAVE QUESTIONS, YOU SHOULD SEE AN ATTORNEY IMMEDIATELY. If you need help finding an attorney, you can call the Oregon State Bar’s Lawyer Referral Service at 503-684-3763 or toll-free in Oregon at 800-452-7636.

 

___________________________

Signature of Plaintiff (landlord or agent)

 

Plaintiff’s address:

 

_____________________

 

_____________________

 

Plaintiff’s telephone number: _________

 

I certify that this is a true copy of the original summons:

 

_____________________

Signature of Plaintiff (landlord or agent)

 

______________________________________________________________________________ [2001 c.596 §8]

 

      105.115 Causes of unlawful holding by force; action for return of possession. (1) Except as provided by subsections (2) and (3) of this section, the following are causes of unlawful holding by force within the meaning of ORS 105.110, 105.123 and 105.126:

      (a) When the tenant or person in possession of any premises fails or refuses to pay rent within 10 days after it is due under the lease or agreement under which the tenant or person in possession holds, or to deliver possession of the premises after being in default on payment of rent for 10 days.

      (b) When the lease by its terms has expired and has not been renewed, or when the tenant or person in possession is holding from month to month, or year to year, and remains in possession after notice to quit as provided in ORS 105.120, or is holding contrary to any condition or covenant of the lease or is holding possession without any written lease or agreement.

      (2) In the case of a dwelling unit to which ORS chapter 90 applies:

      (a) The following are causes of unlawful holding by force within the meaning of ORS 105.110 and 105.123:

      (A) When the tenant or person in possession of any premises fails or refuses to pay rent within 72 hours or 144 hours, as the case may be, of the notice required by ORS 90.394.

      (B) When a rental agreement by its terms has expired and has not been renewed, or when the tenant or person in possession remains in possession after a valid notice terminating the tenancy pursuant to ORS chapter 90, or is holding contrary to any valid condition or covenant of the rental agreement or ORS chapter 90.

      (b) A landlord may not file an action for the return of possession of a dwelling unit based upon a cause of unlawful holding by force as described in paragraph (a) of this subsection until after the expiration of a rental agreement for a fixed term tenancy or after the expiration of the time period provided in a notice terminating the tenancy.

      (3) In an action under subsection (2) of this section, ORS chapter 90 shall be applied to determine the rights of the parties, including:

      (a) Whether and in what amount rent is due;

      (b) Whether a tenancy or rental agreement has been validly terminated; and

      (c) Whether the tenant is entitled to remedies for retaliatory conduct by the landlord as provided by ORS 90.385 and 90.765. [Amended by 1973 c.559 §34; 1977 c.365 §1; 1981 c.753 §5; 1995 c.559 §45; 2001 c.596 §47; 2003 c.378 §19; 2005 c.391 §28]

 

      105.120 Notice necessary to maintain action in certain cases; waiver of notice; effect of advance payments of rent. (1) Except as provided in subsection (2) of this section, an action for the recovery of the possession of the premises may be maintained in cases provided in ORS 105.115 (1)(b), when the notice to terminate the tenancy or to quit has been served upon the tenant or person in possession in the manner prescribed by ORS 91.110 and for the period prescribed by ORS 91.060 to 91.080 before the commencement of the action, unless the leasing or occupation is for the purpose of farming or agriculture, in which case the notice must be served for a period of 90 days before the commencement of the action. Any person entering into the possession of real estate under written lease as the tenant of another may, by the terms of the lease, waive the giving of any notice required by this subsection.

      (2) An action for the recovery of the possession of a dwelling unit to which ORS chapter 90 applies may be maintained in situations described in ORS 105.115 (2) when the notice to terminate the tenancy or to quit has been served by the tenant upon the landlord or by the landlord upon the tenant or person in possession in the manner prescribed by ORS 90.155.

      (3) Except when a tenancy involves a dwelling unit subject to ORS chapter 90, the service of a notice to quit upon a tenant or person in possession does not authorize an action to be maintained against the tenant or person in possession for the possession of premises before the expiration of any period for which the tenant or person has paid the rent of the premises in advance.

      (4) An action to recover possession of a dwelling unit subject to ORS chapter 90 may not be brought or filed against a tenant or person in possession based upon a notice under ORS 90.427 to terminate the tenancy until after the expiration of any period for which the tenant or person has paid the rent of the dwelling unit in advance, unless:

      (a) The only other money paid by the tenant was collected as a last month’s rent deposit as provided under ORS 90.300; or

      (b) The only unused rent was paid by the tenant for a rental period extending beyond the termination date specified in a valid outstanding notice to terminate the tenancy and the landlord refunded the unused rent within six days after receipt by delivering the unused rent to the tenant in person or by first class mailing. [Amended by 1973 c.559 §35; 1981 c.753 §6; 1983 c.303 §5; 1985 c.588 §13; 1989 c.506 §18; 1993 c.369 §15; 1995 c.559 §52; 1997 c.577 §31; 1999 c.603 §35; 1999 c.676 §26]

 

      105.123 Complaint. (1) In an action pursuant to ORS 105.110, it is sufficient to state in the complaint:

      (a) A description of the premises with convenient certainty;

      (b) That the defendant is in possession of the premises;

      (c) That, in the case of a dwelling unit