Oregon Chapter 105
Chapter 105 — Property RightsDownload Full 2005 Oregon Revised Statutes (coming soon!)
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Chapter 105 —
Property Rights
2007 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
105.121 Forms
in action for possession of group recovery home; limitation on issues; attorney
fees
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
105.128 Landlord
action to remove perpetrator of domestic violence, sexual assault or stalking
from possession of dwelling unit; retention of possession by victim
105.130 How
action conducted; fees; surcharge
105.132 Assertion
of counterclaim
105.135 Service
and return of summons; posting; contents; use of facsimile
105.137 Effect
of failure of party to appear; attorney fees; judgment of dismissal; 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 or declaration 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
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 or decontaminating 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
105.618 Adverse
possession of railroad property
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
MOTOR VEHICLE EVENT DATA RECORDERS
105.925 Definitions
for ORS 105.925 to 105.945
105.928 Ownership
of recorded data
105.932 Effect
of vehicle ownership transfer on ownership of data; prohibited insurer and
lessor actions
105.935 Court
order for retrieval or use of data by law enforcement officers or certain
emergency service providers
105.938 Court
order for retrieval or use of data by insurer
105.942 Retrieval
or use of data for responding to medical emergency, for medical research or for
vehicle servicing or repair
105.945 Exempted
data
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
___________________________
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
the rent 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.
(c) When the owner or possessor of a
recreational vehicle that was placed or driven onto property without the prior
consent of the property owner, operator or tenant fails to remove the
recreational vehicle. The property owner or operator is not required to serve a
notice to quit the property before commencing an action under ORS 105.126
against a recreational vehicle owner or possessor holding property by force as
described in this paragraph.
(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; 2007 c.653 §1]
105.120
Notice necessary to maintain action in certain cases; waiver of notice; effect
of advance payments of rent.
(1) As used in this section, “rent” does not include funds paid under the
United States Housing Act of 1937 (42 U.S.C. 1437f).
(2) Except as provided in subsection (3)
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.
(3) 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.
(4) 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.
(5) 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; 2007 c.906 §36]
105.121
Forms in action for possession of group recovery home; limitation on issues;
attorney fees. (1) A former
tenant removed from a group recovery home under ORS 90.440 may bring an action
for injunctive relief to recover possession if the removal was wrongful or in
bad faith.
(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 POSSESSION OF A
DWELLING UNIT IN A
GROUP RECOVERY HOME
I
Defendant is a group recovery home subject
to ORS 90.440. Defendant removed plaintiff from the group recovery home
dwelling unit rented by plaintiff from defendant at:
______________(street
and number)
______________(city)
______________(county)
II
Notice of removal from the dwelling unit
was served on plaintiff under ORS 90.440. The notice of removal was served on:
______________(date)
III
Plaintiff is entitled to possession of the
dwelling unit because:
______ Defendant removed plaintiff
wrongfully by failing to comply with the procedural requirements of ORS 90.440.
______ Defendant removed plaintiff
wrongfully because plaintiff did not use or possess alcohol or illegal drugs
within seven days preceding delivery of a written notice of removal.
______ Defendant removed plaintiff under
ORS 90.440 in bad faith.
Wherefore, plaintiff prays for possession
of the group recovery home dwelling unit and costs and disbursements incurred
herein.
________ ______________
Date Signature
of plaintiff
______________________________________________________________________________
(b) The complaint shall be signed by the
plaintiff or an attorney representing the plaintiff as provided by ORCP 17 and
served by personal delivery on the group recovery home house president or a
person in an equivalent leadership position for the group recovery home.
(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
We deny that the plaintiff is entitled to
possession of the group recovery home dwelling unit that is the subject of the
complaint because:
______ The defendant removed the plaintiff
in compliance with the procedural requirements of ORS 90.440.
______ The plaintiff used or possessed
alcohol or illegal drugs as described in ORS 90.440 within seven days preceding
delivery of a written notice of removal.
______ The defendant did not remove the
plaintiff in bad faith as alleged.
We ask that the plaintiff take nothing by
the complaint and that we be awarded our costs and disbursements.
________ ______________
Date Signature
of defendant
______________________________________________________________________________
(d) The issue at trial shall be limited to
whether the plaintiff is entitled to possession of the dwelling unit described
in the complaint.
(e) If the basis for the complaint is that
removal was wrongful because the plaintiff did not use or possess alcohol or
illegal drugs, the defendant has the burden of proving that the plaintiff used
or possessed alcohol or illegal drugs as described in ORS 90.440 within seven
days preceding delivery of the written notice of removal.
(f) A claim for damages may not be
asserted by either party in the action for possession of the dwelling unit
under this section, but each party may pursue any claim for damages in a
separate action.
(g) A party may join an action for
possession of the dwelling unit 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.
(h) If the court determines that the
plaintiff is entitled to possession of the dwelling unit that is the subject of
the complaint, the court shall enter an order directing the defendant to return
possession of the dwelling unit to the plaintiff. The court may provide that
the defendant have a period of time to deliver possession of the dwelling unit
to the plaintiff.
(i) 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. [2007 c.715 §5]
Note: 105.121 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.
105.123
Complaint. In an action
pursuant to ORS 105.110, it is sufficient to state in the complaint:
(1) A description of the premises with
convenient certainty;
(2) That the defendant is in possession of
the premises;
(3) That, in the case of a dwelling unit
to which ORS chapter 90 does not apply, the defendant entered upon the premises
with force or unlawfully holds the premises with force; and
(4) That the plaintiff is entitled to the
possession of the premises. [2001 c.596 §4 (105.123, 105.124 and 105.126
enacted in lieu of 105.125); 2007 c.508 §12]
105.124
Form of complaint if ORS chapter 90 applies. For a complaint described in ORS 105.123, if ORS chapter 90 applies to
the dwelling unit:
(1) The complaint must be in substantially
the following form and be available from the clerk of the court:
______________________________________________________________________________
IN THE CIRCUIT COURT
FOR THE COUNTY OF
_________
No. _____
RESIDENTIAL EVICTION COMPLAINT
PLAINTIFF
(Landlord or agent):
__________________
__________________
Address: ______________
City: ______________
State:_________ Zip: ______
Telephone: _________
vs.
DEFENDANT
(Tenants/Occupants):
__________________
__________________
MAILING
ADDRESS: ___________
City: ______________
State:_________ Zip: ______
Telephone: _________
1.
Tenants are in possession of the dwelling
unit, premises or rental property described above or located at:
_____________________
2.
Landlord is entitled to possession of the
property because of:
___ 24-hour notice for personal injury, substantial damage,
extremely outrageous act or unlawful occupant. ORS 90.396 or 90.403.
___ 24-hour or 48-hour notice for violation of a drug or alcohol program.
ORS 90.398.
___ 24-hour notice for perpetrating domestic violence, sexual
assault or stalking. ORS 90.445.
___ 72-hour or 144-hour notice for nonpayment of rent. ORS 90.394.
___ 7-day notice with stated cause in a week-to-week tenancy. ORS
90.392 (6).
___ 10-day notice for a pet violation, a repeat violation in a
month-to-month tenancy or without stated cause in a week-to-week tenancy. ORS
90.392 (5), 90.405 or 90.427 (1).
___ 20-day notice for a repeat violation. ORS 90.630 (4).
___ 30-day or 180-day notice without stated cause in a
month-to-month tenancy. ORS 90.427 (2) or 90.429.
___ 30-day notice with stated cause. ORS 90.392, 90.630 or 90.632.
___ Other notice _________
___ No notice (explain) _________
A COPY OF THE
NOTICE RELIED UPON, IF ANY, IS ATTACHED
3.
If the landlord uses an attorney, the case
goes to trial and the landlord wins in court, the landlord can collect attorney
fees from the defendant pursuant to ORS 90.255 and 105.137 (3).
Landlord requests judgment for possession
of the premises, court costs, disbursements and attorney fees.
I certify that the allegations and factual
assertions in this complaint are true to the best of my knowledge.
__________________
Signature of
landlord or agent.
______________________________________________________________________________
(2) The complaint must 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.
(3) A copy of the notice relied upon, if
any, must be attached to the complaint. [2001 c.596 §5 (105.123, 105.124 and
105.126 enacted in lieu of 105.125); 2005 c.22 §80; 2005 c.391 §29; 2007 c.508 §13]
Note: Section 18, chapter 508, Oregon Laws 2007,
provides:
Sec.
18. Notwithstanding the
amendments to ORS 105.124 by section 13 of this 2007 Act, prior to January 1,
2009, a clerk of the court may use either the complaint form set forth in ORS
105.124 as published in the 2005 Edition of Oregon Revised Statutes or the form
set forth in ORS 105.124 as amended and in effect on the effective date of this
2007 Act [January 1, 2008]. [2007 c.508 §18]
105.125 [Amended by 1975 c.256 §9; 1981 c.753 §7;
1993 c.369 §16; 1995 c.559 §47; 1997 c.577 §32; repealed by 2001 c.596 §3
(105.123, 105.124 and 105.126 enacted in lieu of 105.125)]
105.126
Form of complaint if ORS chapter 90 does not apply. For a complaint described in ORS 105.123, if
ORS chapter 90 does not apply to the premises:
(1) The complaint must be in substantially
the following form and be available from the clerk of the court:
______________________________________________________________________________
IN THE CIRCUIT COURT
FOR THE COUNTY OF
_________
EVICTION COMPLAINT
(Tenancy not covered by ORS chapter 90)
No. _____
(Landlord),
Plaintiff(s)
vs.
(Tenant),
Defendant(s)
1.
Defendant is in possession of the
following premises:
__________________
__________________(city)
2.
Defendant entered upon the premises with
force or is unlawfully holding the premises with force.
3.
Plaintiff is entitled to possession of the
premises, because:
_____ 30-day
notice (month-to-month tenancy)
_____ 30-day
notice (cause)
_____ Other
notice (explain) ________
_____ No
notice (explain) _________
A COPY OF ANY NOTICE RELIED UPON IS
ATTACHED
Wherefore, plaintiff prays for possession
of the premises, costs and disbursements and attorney fees, if applicable.
__________________
Plaintiff
______________________________________________________________________________
(2) A copy of the notice relied upon, if
any, must be attached to the complaint. [2001 c.596 §6 (105.123, 105.124 and
105.126 enacted in lieu of 105.125); 2003 c.378 §20]
105.128
Landlord action to remove perpetrator of domestic violence, sexual assault or
stalking from possession of dwelling unit; retention of possession by victim. In an action for possession of a dwelling
unit to which ORS chapter 90 applies:
(1) If the defendant raises a defense
under ORS 90.449 based upon the defendant’s status as a victim of domestic
violence, sexual assault or stalking and the perpetrator is a tenant of the
dwelling unit, the court may issue an order terminating the tenancy of the
perpetrator and ordering the perpetrator to vacate the dwelling unit without
terminating the tenancy of the other tenants and without awarding possession to
the plaintiff.
(2) If the action is based upon a notice
terminating the tenancy of a perpetrator under ORS 90.445, the court may issue
an order upholding the termination of the perpetrator’s tenancy and ordering
the perpetrator to vacate the dwelling unit without the tenancy of the other
tenants being terminated and without awarding possession to the plaintiff.
(3) If a court issues an order described
in subsection (1) or (2) of this section, the court may enter judgment in favor
of the plaintiff against the perpetrator. The plaintiff may enforce the
judgment against the perpetrator as provided in ORS 105.151, but may not
enforce the judgment against any other tenant of the dwelling unit. The sheriff
shall remove only the perpetrator from the dwelling unit. The sheriff may not
return possession of the dwelling unit to the plaintiff. [2007 c.508 §6]
Note: 105.128 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.
105.130
How action conducted; fees; surcharge. (1) Except as provided in this section and ORS 105.135, 105.137 and
105.140 to 105.161, an action pursuant to ORS 105.110 shall be conducted in all
respects as other actions in courts of this state.
(2) Upon filing a complaint in the case of
a dwelling unit to which ORS chapter 90 applies, the clerk shall:
(a) Collect a filing fee of $13;
(b) Collect any other fee authorized by
law or ordinance; and
(c) With the assistance of the plaintiff
or an agent of the plaintiff, complete the applicable summons and provide to
the plaintiff or an agent of the plaintiff sufficient copies of the summons and
complaint for service.
(3) After a complaint is filed under
subsection (2) of this section, if the defendant demands a trial, the plaintiff
shall pay an additional filing fee of $29 and the defendant shall pay a filing
fee of $42.
(4) An action pursuant to ORS 105.110
shall be brought in the name of a person entitled to possession as plaintiff.
The plaintiff may appear in person or through an attorney. In an action to
which ORS chapter 90 applies, the plaintiff may also appear through a
nonattorney who is an agent or employee of the plaintiff or an agent or
employee of an agent of the plaintiff.
(5) Notwithstanding ORS 9.160, 9.320 and
ORS chapter 180, a state agency may appear in an action brought pursuant to ORS
105.110 through an officer or employee of the agency if:
(a) The Attorney General consents to the
representation of the agency by an officer or employee in the particular action
or in the class of actions that includes the particular action; and
(b) The agency, by rule, authorizes an
officer or employee to appear on its behalf in the particular type of action
being conducted.
(6) In addition to the fees charged under
subsection (2) of this section, the clerk shall collect a surcharge from the
plaintiff at the time a complaint is filed that is subject to the filing fees
established by subsection (2) of this section and from a defendant at the time
a defendant demands a trial in the action. The surcharge shall be deposited by
the State Court Administrator into the State Treasury to the credit of the
Housing and Community Services Department Low Income Rental Housing Fund
established by ORS 458.350. The amount of the surcharge shall be $10.
(7) A document or pleading shall be filed
by the clerk only if the fees and surcharges required under this section are
paid by the person filing the document or pleading or if an application for a
waiver or deferral of fees and court costs is granted by the court under ORS
21.680 to 21.698. Fees and surcharges provided for in this section may not be
refunded. [Amended by 1975 c.256 §10; 1977 c.877 §15; 1979 c.284 §94; 1981
c.753 §10; 1983 c.581 §1; 1985 c.588 §16; 1987 c.829 §5; 1991 c.92 §1; 1993
c.369 §17; 1995 c.273 §17; 1997 c.801 §34; 2003 c.737 §§47,48; 2005 c.702 §§53,54,55;
2007 c.493 §§8,18b; 2007 c.860 §8]
Note: Section 15 (16), chapter 860, Oregon Laws
2007, provides:
Sec.
15. (16)(a) In addition to
the fees provided for in ORS 105.130 (2), for the period commencing September
1, 2007, and ending June 30, 2009, upon filing a complaint in the case of a
dwelling unit to which ORS chapter 90 applies, the clerk of the court shall
collect a surcharge of $3.
(b) In addition to the fees provided for
in ORS 105.130 (3), for the period commencing September 1, 2007, and ending
June 30, 2009, if the defendant demands a trial after a complaint is filed
under ORS 105.130 (2), the plaintiff shall pay a surcharge of $2. [2007 c.860 §15(16)]
105.132
Assertion of counterclaim.
No person named as a defendant in an action brought under ORS 105.105 to
105.168 may assert a counterclaim unless the right to do so is otherwise
provided by statute. [1985 c.244 §2]
105.135
Service and return of summons; posting; contents; use of facsimile. (1) Except as provided in this section, the
summons shall be served and returned as in other actions.
(2) At the time the clerk collects the
filing fee under ORS 105.130, the clerk shall enter the first appearance date
on the summons. That date shall be seven days after the judicial day next
following payment of filing fees unless no judge is available for first
appearance at that time, in which case the clerk may extend the first
appearance date for up to seven additional days. At the request of the
plaintiff, the clerk may enter a date more than seven days after the judicial
day next following payment of filing fees if a judge will be available.
(3) Notwithstanding ORCP 10, by the end of
the judicial day next following the payment of filing fees:
(a) The clerk shall mail a true copy of
the summons and complaint by first class mail to the defendant at the premises.
(b) The process server shall serve the
defendant with a true copy of the summons and complaint at the premises by
personal delivery to the defendant or, if the defendant is not available for
service, by attaching a true copy of the summons and complaint in a secure
manner to the main entrance to that portion of the premises of which the
defendant has possession.
(4) A sheriff may serve a facsimile of a
certified true copy of a summons and complaint that is transmitted to the
sheriff by a trial court administrator or another sheriff using a telephonic
facsimile communication device. A copy of the facsimile must be attached to the
sheriff’s return of service. Before transmitting a summons and complaint to a
sheriff under this subsection, the person sending the facsimile must receive
confirmation by telephone from the sheriff’s office that a telephonic facsimile
communication device is available and operating.
(5) The process server shall indicate the
manner in which service was accomplished by promptly filing with the clerk a
certificate of service as provided by ORCP 7 F(2)(a).
(6) In the case of premises to which ORS
chapter 90 applies, the summons shall inform the defendant of the procedures,
rights and responsibilities of the parties as specified in ORS 105.137. [Amended
by 1975 c.256 §11; 1977 c.327 §1; 1979 c.854 §2; 1981 c.753 §11; 1983 c.303 §6;
1983 c.581 §3; 1985 c.588 §14; 1995 c.559 §48; 1997 c.577 §33; 2007 c.255 §3]
105.137
Effect of failure of party to appear; attorney fees; judgment of dismissal;
scheduling of trial; unrepresented defendant. In the case of a dwelling unit to which ORS chapter 90 applies:
(1) If the plaintiff appears and the
defendant fails to appear at the first appearance, a default judgment shall be
entered in favor of the plaintiff for possession of the premises and costs and
disbursements.
(2) If the defendant appears and the
plaintiff fails to appear at the first appearance, a default judgment shall be
entered in favor of the defendant dismissing the plaintiff’s complaint and
awarding costs and disbursements.
(3) An attorney at law shall be entitled
to appear on behalf of any party, but attorney fees may not be awarded to the
plaintiff if the defendant does not contest the action.
(4) If the plaintiff dismisses the action
before the first appearance, a judgment of dismissal shall be entered in favor
of the defendant dismissing the plaintiff’s complaint and awarding costs and
disbursements. The defendant may not recover attorney fees for prejudgment
legal services provided after the delivery of written notice of the dismissal
by the plaintiff to the defendant, or to an attorney for the defendant, in the
manner provided under ORS 90.155.
(5) The plaintiff or an agent of the
plaintiff may obtain a continuance of the action for as long as the plaintiff
or the agent of the plaintiff deems necessary to obtain the services of an
attorney at law.
(6) If both parties appear in court on the
date contained in the summons, the court shall set the matter for trial as soon
as practicable, unless the court is advised by the parties that the matter has
been settled. The trial shall be scheduled no later than 15 days from the date
of such appearance. If the matter is not tried within the 15-day period, and
the delay in trial is not attributable to the landlord, the court shall order
the defendant to pay rent that is accruing into court, provided the court finds
after hearing that entry of such an order is just and equitable.
(7)(a) The court shall permit an
unrepresented defendant to proceed to trial by directing the defendant to file
an answer in writing on a form which shall be available from the court clerk,
and to serve a copy upon the plaintiff on the same day as first appearance.
(b) The answer shall be in substantially
the following form:
______________________________________________________________________________
IN THE _________ COURT FOR
THE COUNTY OF ____________
(Landlord), )
)
Plaintiff(s), )
)
vs. ) No.___
)
(Tenant), )
)
Defendant(s). )
ANSWER
I (we) deny that the plaintiff(s) is (are)
entitled to possession because:
__ The landlord
did not make repairs.
List any repair problems: ________
________________________
________________________
__ The landlord is
attempting to evict me (us) because of my (our) complaints (or the eviction is
otherwise retaliatory).
__ The landlord is
attempting to evict me because of my status as a victim of domestic violence,
sexual assault or stalking.
__ The eviction
notice is wrong.
__ List any other
defenses: _________
________________________
________________________
________________________
________________________
I (we) may be entitled as the prevailing
party to recover attorney fees from plaintiff(s) if I (we) obtain legal
services to defend this action pursuant to ORS 90.255.
I (we) ask that the plaintiff(s) not be
awarded possession of the premises and that I (we) be awarded my (our) costs
and disbursements and attorney fees, if applicable, or a prevailing party fee.
________ ______________
Date Signature
of defendant(s)
______________________________________________________________________________
(8) If an unrepresented defendant files an
answer as provided in subsection (7) of this section, the answer may not limit
the defenses available to the defendant at trial under ORS chapter 90. If such
a defendant seeks to assert at trial a defense not fairly raised by the answer,
the plaintiff shall be entitled to a reasonable continuance for the purposes of
preparing to meet the defense. [1975 c.256 §13; 1979 c.765 §5; 1979 c.854 §3;
1981 c.753 §12; 1989 c.506 §19; 1997 c.577 §34; 2005 c.391 §33; 2007 c.508 §14]
105.138
Compelling arbitration; procedure. (1) Notwithstanding ORS 105.137 (6), if a party to an action to which
ORS 90.505 to 90.840 apply moves for an order compelling arbitration and
abating the proceedings, the court shall summarily determine whether the
controversy between the parties is subject to an arbitration agreement
enforceable under ORS 90.610 (2) and, if so, shall issue an order compelling
the parties to submit to arbitration in accordance with the agreement and
abating the action for not more than 30 days, unless the parties agree to an
order of abatement for a longer period acceptable to the court.
(2) If the court issues an order
compelling arbitration under subsection (1) of this section, the court may not
order the payment of rent into court pending the arbitration unless the court
finds such an order is necessary to protect the rights of the parties. [1989
c.918 §7; 1991 c.844 §20; 1995 c.559 §46; 2001 c.596 §49a; 2007 c.508 §15]
105.139
Burden of proof in certain cases. If a landlord brings an action for possession under ORS 90.403 and the
person in possession contends that the tenant has not vacated the premises, the
burden of proof is on the defendant as to that issue. [1983 c.303 §3; 1993
c.369 §34; 2003 c.378 §21; 2005 c.22 §81; 2005 c.391 §30]
105.140
Continuance. No continuance
shall be granted to a defendant for a longer period than two days unless:
(1) The defendant gives an undertaking to
the adverse party with good and sufficient security, to be approved by the
court, conditioned for the payment of the rent that may accrue if judgment is
rendered against the defendant; or
(2) In an action for the recovery of the
possession of a dwelling unit to which ORS chapter 90 applies, the court orders
a defendant to pay rent into court as it becomes due from the commencement of
the action until entry of a general judgment in the action. If a defendant
fails to pay rent into court as ordered under this subsection, the action shall
be tried forthwith. [Amended by 1973 c.559 §36; 1977 c.365 §2; 1979 c.854 §4;
2003 c.576 §237]
105.145
Judgment on trial by court; duties of parties to stipulated agreement. (1) If an action is tried by the court
without a jury, and after hearing the evidence the court concludes that the
complaint is not true, the court shall enter judgment against the plaintiff for
costs and disbursements. If the court finds the complaint true or if judgment
is rendered by default, the court shall render a general judgment against the
defendant and in favor of the plaintiff, for restitution of the premises and
the costs and disbursements of the action. If the court finds the complaint
true in part, the court shall render judgment for the restitution of such part
only, and the costs and disbursements shall be taxed as the court deems just and
equitable.
(2) If, as a result of a court-sponsored
or other mediation or otherwise, the plaintiff and defendant agree, in the
manner provided by ORCP 67 F for judgment by stipulation, that the defendant
shall perform in a certain manner or that the plaintiff shall be paid moneys
agreed to be owing by the defendant and that as a result of that performance or
payment the defendant shall retain possession of the premises, including
retention of possession contingent upon that performance or payment of moneys
by the defendant by a certain date, the court shall enter an order or judgment
to that effect. In addition, if the plaintiff and defendant agree that the
plaintiff shall perform in a certain manner or pay moneys to the defendant by a
certain date, the court shall enter an order or judgment to that effect.
(3) If, as provided by subsection (2) of
this section, the parties enter an order or judgment by stipulation that
requires the defendant to perform in a certain manner or make a payment by a
certain date and the defendant later demonstrates compliance with the
stipulation, the court shall enter a judgment of dismissal in favor of the
defendant. [Amended by 1997 c.577 §35; 1999 c.603 §36; 2003 c.378 §22]
105.146
Failure of defendant to perform as ordered; judgment of restitution. (1) In an action to recover possession of
the premises, if the court has entered an order by stipulation that provides
for the defendant to retain possession of the premises contingent upon the
defendant’s performance or payment of moneys by a certain date as provided
under ORS 105.145 (2), and the defendant fails to comply with the order, the
plaintiff may obtain and enforce a judgment of restitution of the premises
pursuant to this section and ORS 105.148 and 105.149.
(2) A plaintiff may obtain and enforce a
judgment of restitution based upon an order entered as provided under ORS
105.145 (2), provided the order includes only:
(a) Future performance or conduct as
described in the order for a period of not more than six months following entry
of the order;
(b) Payment of past due rent and other
past due amounts pursuant to a schedule provided in the order for a period of
not more than six months following entry of the order;
(c) Payment of rent due for future rental
periods that follow entry of the order pursuant to a schedule provided in the
order for not more than the first three monthly rental periods following entry
of the order; and
(d) Payment of any costs, disbursements or
attorney fees pursuant to a schedule provided in the order.
(3) The order shall contain a statement
providing that 12 months following the entry of the order, the court shall
automatically dismiss the order without further notice to either the plaintiff
or the defendant.
(4) If the defendant fails to comply with
the order, the plaintiff may file with the clerk of the court an affidavit or
declaration of noncompliance describing how the defendant has failed to comply.
The plaintiff shall attach a copy of the order to the affidavit or declaration.
The affidavit or declaration, or the order, must include the terms of the
underlying settlement agreement or stipulation or have a copy of the agreement
attached.
(5) Upon receipt of a plaintiff’s
affidavit or declaration:
(a) The court shall enter a judgment of
restitution; and
(b) The clerk shall issue a notice of
restitution as provided by ORS 105.151 and attach to the notice a copy of the
plaintiff’s affidavit or declaration of noncompliance and any attachments for
service.
(6) The court shall establish a procedure
that allows the defendant to request a hearing on the plaintiff’s affidavit or
declaration of noncompliance and delay expiration of the notice of restitution
period or execution upon a judgment of restitution pending the hearing.
(7) The court shall enter a judgment
dismissing the plaintiff’s action in favor of the defendant without assessment
of costs, disbursements, prevailing party fee or attorney fees against either
party except as provided in the order and without further notice to either
party:
(a) Upon receipt of a writing signed by
the plaintiff showing compliance with or satisfaction of the order; or
(b) Twelve months following entry of the
order, unless the plaintiff has filed an affidavit or declaration of
noncompliance and the court has found in favor of the plaintiff on the
affidavit or declaration. [2001 c.596 §10 (105.146, 105.148 and 105.149 enacted
in lieu of 105.147); 2003 c.378 §23; 2007 c.508 §16]
Note: 105.146 to 105.149 were added to and made a
part of 105.105 to 105.168 by legislative action but were not added to any
smaller series therein. See Preface to Oregon Revised Statutes for further
explanation.
105.147 [1999 c.603 §4; repealed by 2001 c.596 §9
(105.146, 105.148 and 105.149 enacted in lieu of 105.147)]
105.148
Contesting plaintiff’s affidavit or declaration of noncompliance; ex parte
review of hearing request; delaying execution upon judgment of restitution. (1)(a) To contest a plaintiff’s affidavit or
declaration of noncompliance under ORS 105.146 and delay expiration of the
notice of restitution period or execution upon the judgment of restitution, a
defendant shall file a request for hearing with the clerk of the court. The
request must be filed prior to issuance by the clerk of a writ of execution of
judgment of restitution and must include a statement by the defendant
describing how the defendant complied with the order or describing why the
defendant should not be required to comply.
(b) A court may, as part of the procedure
authorized by ORS 105.146 (6), require that a defendant submit a hearing
request to the court for ex parte review prior to the defendant’s filing the
request with the clerk. If the court provides for ex parte review, the ex parte
review must be available every judicial day for appearance by the defendant
before the court within the time period between service of the notice of
restitution and the date of expiration of the notice of restitution. The notice
of restitution must include or have attached to it a description of the requirements
for appearing before the court for ex parte review and a copy of the hearing
request form. The court may not require that the defendant notify the plaintiff
of the defendant’s intention to appear before the court. If, after hearing the
defendant at the ex parte review, the court finds that the reasons given by the
defendant for opposing the plaintiff’s affidavit or declaration of
noncompliance do not relate to the issues listed in ORS 105.149 (2), the court
shall deny the request for a hearing.
(2) The clerk shall make available a
document providing for a request for hearing by a defendant. The document must
be in substantially the following form:
______________________________________________________________________________
IN THE CIRCUIT COURT
FOR THE COUNTY OF
_________
Defendant’s Request for Hearing to
Contest an Affidavit or Declaration
of Noncompliance
Case No. _____
Landlord or
agent (Plaintiff):
__________________
vs.
Tenant/Occupant
(Defendant):
__________________
Address of
Property:
__________________
__________________
1. My landlord has filed a statement with
the court saying that I have not complied with a court-approved agreement and
that as a result my landlord is entitled to possession of the property.
2. I deny the landlord is entitled to
possession of the property because (The reason must be one of the following.
You must check one or more of these responses and you must explain in section
3.):
_____ a. The landlord is wrong. As
explained below, I did comply with the agreement.
_____ b. Before I could comply with the
agreement, the landlord was supposed to do what is explained below, which the
landlord did not do.
_____ c. The landlord and I changed the
agreement and I complied with the agreement as changed. The change we agreed to
is explained below.
_____ d. The landlord prevented me from
keeping the agreement. The way the landlord did that is explained below.
_____ e. The agreement was not made in
good faith as required by ORS 90.130. The lack of good faith is explained below.
_____ f. The portion of the agreement
described below was unconscionable as described in ORS 90.135.
_____ g. The landlord is required by law
or contract to have good cause to force me to move out and my alleged conduct
or performance does not meet the standard of good cause, as explained below.
_____ h. The landlord is claiming I did
not pay rent for a period of time following the date of the agreement. I did
not pay that rent because I have claims for money against the landlord to
offset the rent. Those claims arise from the landlord’s violation of the
Residential Landlord and Tenant Act or the rental agreement since the date of
the court order and are explained below.
3. Here is my explanation for the reason
or reasons checked above:
___________________________
___________________________
___________________________
4. I understand that if I lose in court, I
may be responsible for the landlord’s costs, disbursements, any attorney fees
and a prevailing party fee.
I hereby declare that the above statement
is true to the best of my knowledge and belief, and that I understand it is
made for use as evidence in court and is subject to penalty for perjury.
_______________
(Signature of
tenant)
Date: ________
______________________________________________________________________________
(3) As an alternative to the document
described in subsection (2) of this section, a defendant may request a hearing
by use of a notarized affidavit. [2001 c.596 §11 (105.146, 105.148 and 105.149
enacted in lieu of 105.147); 2003 c.378 §24; 2005 c.391 §35; 2007 c.508 §17]
Note: See note under 105.146.
105.149
Hearing on compliance with order. (1) Upon receipt of a timely filed request for hearing described in
ORS 105.148, the clerk of the court:
(a) Shall schedule a hearing on the
defendant’s request as soon as practicable;
(b) Shall notify both parties of the
hearing date;
(c) Shall mail or send by facsimile a copy
of the defendant’s request to the plaintiff; and
(d) May not issue a writ of execution of
judgment of restitution pending the hearing.
(2)(a) At the hearing, except as provided
in paragraph (b) of this subsection, the court may consider only the following
issues:
(A) Whether the defendant complied with
the order.
(B) Whether the plaintiff complied with any
requirement of the order that is a predicate to compliance by the defendant.
(C) Whether the parties agreed to modify
the order and complied with the modified order.
(D) Whether one party unfairly prevented
compliance by the other party.
(b) If ORS chapter 90 applies to a
dwelling unit, in addition to the issues described in paragraph (a) of this
subsection, the court may consider the following issues:
(A) Whether the stipulated agreement was
entered into in good faith as required by ORS 90.130 or is unconscionable as
described in ORS 90.135.
(B) Whether, for a defendant whose
noncompliance concerns performance or conduct, the noncompliance constitutes
good cause for purposes of an applicable law or contract that requires the
plaintiff to have good cause for terminating the tenancy.
(C) Whether, for a defendant whose
noncompliance concerns a failure to pay rent due for future rental periods
pursuant to ORS 105.146 (2)(c), the defendant has claims against the plaintiff
for moneys that offset the rent. The defendant’s claims must be pursuant to ORS
chapter 90 or the rental agreement and must have arisen after the entry of the
order.
(c) The defendant may not raise defenses
or claims involving issues other than issues described in paragraphs (a) and (b)
of this subsection.
(3) If the court finds in favor of the
plaintiff after the hearing, the clerk may issue a writ of execution of
judgment of restitution. If the defendant did not appear at the hearing, the
clerk may issue the writ immediately. If the defendant did appear, the clerk
may issue the writ no earlier than 24 hours after the court’s ruling. Further
notice to the defendant is not required.
(4) If the court finds in favor of the
defendant after the hearing, the court shall set aside the judgment. The court
may reinstate the order, terminate the order and enter a judgment dismissing
the plaintiff’s action in favor of the defendant, enter a new order or schedule
a trial on the plaintiff’s action as soon as practicable. [2001 c.596 §12
(105.146, 105.148 and 105.149 enacted in lieu of 105.147); 2003 c.378 §25; 2005
c.391 §36]
Note: See note under 105.146.
105.150 [Repealed by 1989 c.506 §20]
105.151
Enforcement of judgment of restitution; notice of restitution. (1) If the court renders judgment for
restitution of the premises to the plaintiff, the plaintiff may only enforce
that judgment in the following manner:
(a) Issuance by the clerk of the court and
service upon the defendant of a notice of restitution that shall give the
defendant four days to move out of the premises, including removal of all
personal property; and
(b) After the expiration of the four-day
period provided in the notice of restitution, issuance by the clerk of the
court and service by the sheriff upon the defendant of a writ of execution of
judgment of restitution, directing the sheriff to enforce the judgment by
removing the defendant and by returning possession of the premises to the
plaintiff, along with an eviction trespass notice from the sheriff.
(2) Following entry of judgment for
restitution of the premises in favor of a plaintiff, or any date for possession
as specified in the judgment, whichever is later, the plaintiff may request
that the clerk of the court in which the judgment is entered issue a notice of
restitution. The notice of restitution shall order the defendant to move out of
the premises, including removing all personal property, in no less than four
days. The plaintiff may direct the clerk to extend the notice period beyond
four days. Following payment of any required fees, the clerk shall issue the
notice.
(3) This section does not prevent a
landlord in a tenancy to which ORS chapter 90 does not apply from exercising a
right of entry provided by law and described in ORS 105.105 in order to recover
possession of the premises, provided that the right of entry is stated in the
rental agreement between the parties. [2001 c.596 §14 (105.151, 105.152,
105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of
105.154); 2003 c.378 §26]
105.152
Form of notice of restitution for judgment entered under ORS 105.146. If the court entered a judgment pursuant to
ORS 105.146, a notice of restitution issued by the clerk of the court pursuant
to ORS 105.151 must be in substantially the following form:
______________________________________________________________________________
IN THE CIRCUIT COURT FOR
THE COUNTY OF _________
Notice of Restitution
because of not complying
with a court-approved agreement
Case Number ______
TO: _____________________
(Tenant/Defendant)
___________________________
(Address of
rental property)
You and your landlord made a
court-approved agreement allowing you to stay in the property. Your landlord
claims that you have not kept that agreement. (A copy of the landlord’s claim
is attached.) Unless you can prove to the court why you should not have to move
out, you must move by the MOVE OUT DATE listed below. If you do not, the
landlord can have the Sheriff physically remove you.
If you believe that you have kept the agreement
or that you have a legal reason for not keeping the agreement, you are entitled
to a court hearing. Legal reasons are listed in ORS 105.148 and 105.149. They
include the landlord interfering with your effort to keep the agreement and
your complying with a modification of the agreement made by you and your
landlord.
To request a hearing, you must go to the
court and complete a form explaining why you believe that you have kept (or
should not be required to keep) the agreement. You have to do this before _____
a.m./p.m. on_________. The Sheriff will not physically remove you from the
property before the hearing.
If the judge rules against you at the
hearing, the landlord can have the Sheriff physically remove you.
DEADLINE TO MOVE OUT
MOVE OUT DATE: _________
If you do not request a hearing, you must
move out of the property no later than 11:59 p.m. on the Move Out Date.
If you and everyone else living there do
not move out by that time, the Sheriff will physically remove you. You must
also move all of your belongings by that time. Anything you leave behind will
be stored or disposed of as allowed by law.
__________________
Deputy Court
Administrator
______________________________________________________________________________
[2001 c.596 §15
(105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161
enacted in lieu of 105.154); 2003 c.378 §27]
105.153
Form of notice of restitution for judgment not entered under ORS 105.146. If a court entered a judgment other than
pursuant to ORS 105.146, a notice of restitution issued by the clerk of the
court pursuant to ORS 105.151 must be in substantially the following form:
______________________________________________________________________________
In the Circuit Court for the
County of _________
NOTICE OF RESTITUTION
Case Number _________
TO: __________________
(Defendant/Tenant)
___________________________
___________________________
___________________________
(Address of
property)
DEADLINE TO MOVE OUT
MOVE OUT DATE: _________
The Court has ordered you to move out of
the property. You must move out no later than 11:59 p.m. on the Move Out Date.
If you and everyone else living there do
not move out by that time, the Sheriff will physically remove you. You must
also move all of your belongings by that time. Anything you leave behind will
be stored or disposed of as allowed by law.
________________________
Deputy Court
Administrator
______________________________________________________________________________
[2001 c.596 §16
(105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161
enacted in lieu of 105.154)]
105.154 [1995 c.559 §50 (enacted in lieu of
105.155); 1995 c.658 §70a; 1997 c.577 §§36,37; 1999 c.603 §37; repealed by 2001
c.596 §13 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and
105.161 enacted in lieu of 105.154)]
105.155 [Amended by 1979 c.765 §6; 1985 c.588 §15;
1993 c.369 §27; repealed by 1995 c.559 §49 (105.154 enacted in lieu of
105.155)]
105.156
Form of writ of execution for judgment of restitution. The writ of execution of judgment of
restitution referred to in ORS 105.151 must be in substantially the following
form:
______________________________________________________________________________
State of
) ss. EXECUTION
OF
) JUDGMENT
OF
) RESTITUTION
County of _____ )
To the Sheriff:
This was an eviction action for possession
of the following premises:
______________________
______________________(city)
______________________(county)
Judgment was entered that the plaintiff
have restitution of the premises and that the plaintiff may be entitled to
court costs and disbursements.
In the name of the State of
You are ordered to enter the premises and
remove the defendant and any other individual present on the premises who is
subject to the judgment and return possession of the premises to the plaintiff.
You may use all reasonable force that may be necessary to enter the premises
and remove individuals who are subject to the judgment.
The plaintiff shall be responsible for
removing, storing and disposing of any personal property left by the defendant
on the premises following the removal of the defendant and the return of
possession of the premises, as provided by ORS 105.165.
DATED this ___ day of ______, ___.
__________________
Deputy Court Administrator
__________________
Plaintiff
__________________
Address
__________________
City/State/Zip
______________________________________________________________________________
[2001 c.596 §17
(105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161
enacted in lieu of 105.154); 2003 c.378 §29; 2005 c.391 §37; 2007 c.255 §4]
105.157
Form of eviction trespass notice. The eviction trespass notice referred to in ORS 105.151 must be in
substantially the following form:
______________________________________________________________________________
EVICTION TRESPASS NOTICE
Occupants of these premises located at:
__________________
__________________
__________________
have been evicted
by an order of the court in ___________ vs. ___________, Case Number _________.
Trespassing or entering into or upon these
premises without written consent of the landlord will result in arrest and
prosecution.
Any personal property present on these
premises at the time this notice was served, (date) _______________, is in the
possession of the landlord and may be redeemed by contacting the landlord at:
______________________
______________________
______________________
DATED _______________
_______________
SHERIFF
______________________________________________________________________________
[2001 c.596 §18
(105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161
enacted in lieu of 105.154); 2003 c.378 §30]
105.158
Service of notice of restitution. (1) For purposes of this section, “process server” means any competent
person 18 years of age or older who:
(a) Is a resident of the State of
(b) Is not the plaintiff, a relative of
the plaintiff or an agent of the plaintiff for purposes of management of the
premises;
(c) Is a person regularly employed in the
business of serving process; and
(d) Charges a fee no greater than that set
by ORS 21.410 (1)(a) for service of the notice of restitution.
(2) The sheriff or a process server shall
serve the notice of restitution under ORS 105.152 or 105.153 in the manner
provided by this subsection. Notwithstanding ORCP 10, by the end of the next
judicial day following the payment of fees:
(a) The sheriff or process server shall
mail a copy of the notice of restitution by first class mail to the defendant
at the premises; and
(b) The sheriff or process server shall
serve the notice of restitution at the premises by personal delivery to the
defendant or, if the defendant is not available for service, by attaching a
copy of the notice in a secure manner to the main entrance to that portion of
the premises of which the defendant has possession.
(3) If service of the notice of
restitution is made by a process server, by the end of the next judicial day
following service the process server shall file with the clerk of the court a
certificate of service in the same manner as provided by ORCP 7 F(2)(a). [2001
c.596 §19 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and
105.161 enacted in lieu of 105.154); 2003 c.304 §8]
105.159
Computation of time before plaintiff may request writ of execution. (1) Notwithstanding ORCP 10, the four-day
period specified in ORS 105.151 (2) shall:
(a) Commence at 12:01 a.m. on the day
following mailing and service of the notice of restitution pursuant to ORS
105.158, including a Saturday or a Sunday or other legal holiday; and
(b) End on the fourth calendar day
following the mailing and service except that if the fourth day is a Saturday
or a Sunday or other legal holiday, the period shall end at 12 midnight of the
day preceding the next judicial day.
(2) Except as provided in subsection (3)
of this section, at any time after the expiration of the period provided in the
notice of restitution, the plaintiff may request that the clerk of the court
issue a writ of execution of judgment of restitution directing the sheriff to
enforce the judgment of restitution by returning possession of the premises to
the plaintiff. Following payment of any required fees, the clerk shall issue
the writ in substantially the form provided by ORS 105.156.
(3) Unless the judgment otherwise
provides, the clerk may not issue a notice of restitution or a writ of
execution of judgment of restitution more than 60 days after the judgment is
entered or after any date for possession as specified in the judgment,
whichever is later. [2001 c.596 §20 (105.151, 105.152, 105.153, 105.156,
105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154)]
105.160 [Repealed by 1977 c.365 §3 and 1977 c.416 §5]
105.161
Service and enforcement of writ of execution and eviction trespass notice. (1) Following issuance of the writ of
execution of judgment of restitution and payment of any fees required by the
sheriff, the sheriff shall immediately enforce and serve the writ upon the
defendant, along with the eviction trespass notice, as follows:
(a) The sheriff shall mail a copy of the
writ and the eviction trespass notice by first class mail to the defendant at
the premises;
(b) The sheriff shall serve the writ and
the eviction trespass notice at the premises by personal delivery to the
defendant or, if the defendant is not available for service, by attaching the
writ and notice in a secure manner to the main entrance to that portion of the
premises of which the defendant has possession;
(c) Immediately following the service of
the writ and the eviction trespass notice, the sheriff shall return possession
of the premises to the plaintiff by removing the defendant or any other person
subject to the judgment; and
(d) Following the sheriff’s removal of the
defendant and return of possession of the premises to the plaintiff, the plaintiff
shall be responsible for removing, storing and disposing of any personal
property left by the defendant on the premises, as provided by ORS 105.165.
(2) Following issuance of the writ, at the
plaintiff’s request, the sheriff shall delay enforcement and service of the
writ.
(3) Any writ not enforced and served
within 30 days following issuance shall expire and become unenforceable.
(4) A judgment may not be enforced if the
parties have entered a new rental agreement or if the plaintiff has accepted rent
for a period of occupancy beginning after the judgment was entered. [2001 c.596
§21 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161
enacted in lieu of 105.154); 2003 c.378 §31]
105.165
Alternative method of removing, storing and disposing of tenant’s personal
property; requirements; landlord liability. (1) If ORS chapter 90 applies to a dwelling unit, following
restitution of the premises to the plaintiff by the sheriff pursuant to ORS
105.161, the plaintiff shall remove, store and dispose of any personal property
left by the defendant on the premises as provided in ORS 90.425 or 90.675.
(2) If ORS chapter 90 does not apply to a
premises, the plaintiff or landlord shall remove, store and dispose of any
personal property left by the defendant or tenant upon the premises following
recovery of possession of the premises by the plaintiff or landlord:
(a) Pursuant to any landlord’s lien
available under ORS 87.162;
(b) As provided by any rental agreement
between the plaintiff or landlord and the defendant or tenant; or
(c) At the plaintiff or landlord’s
discretion, by following the process described in ORS 90.425 (2), (3) and (5)
to (11) and (13) to (16) except that:
(A) The plaintiff or landlord may require
payment of any amount owed by the defendant or tenant to the plaintiff or
landlord prior to allowing the defendant or tenant to remove or recover the
personal property if the payment requirement is stated in the written notice;
and
(B) ORS 90.425 may be applied to address
only the rights and obligations of the plaintiff or landlord and defendant or
tenant in the personal property and not the rights of other parties.
(3) Any cost incurred by the plaintiff for
execution pursuant to ORS 105.151 or 105.158 to 105.161 or for removal, storage
or sale of the defendant’s property under this section and not recovered
pursuant to ORS 90.425 (13) or 90.675 (13) shall be added to the judgment.
(4) If the plaintiff fails to permit the
defendant to recover possession of the defendant’s personal property under
subsection (1) of this section, the defendant may recover from the plaintiff,
in addition to any other amount provided by law, twice the actual damages or
twice the monthly rent, whichever is greater. [1981 c.753 §9; 1989 c.506 §23;
1989 c.910 §5; 1993 c.369 §18; 1995 c.559 §51; 1997 c.577 §39; 2001 c.596 §48;
2003 c.378 §32; 2003 c.658 §10]
105.168
Minor as party in proceedings pertaining to residential dwellings. Notwithstanding ORCP 27 or any other
provision of law, a minor, as defined in ORS 109.697 and who is a tenant as
defined under ORS 90.100, may appear as a party without appointment of a
guardian or guardian ad litem in an action for forcible entry or wrongful
detainer, under ORS 105.105 to 105.168 regarding possession of a residential
dwelling unit to which ORS chapter 90 applies, or in an action based upon a
contract for a residential dwelling unit or for utility services provided to
that unit. [1993 c.369 §31]
EASEMENT OWNER
OBLIGATIONS
105.170
Definitions for ORS 105.170 to 105.185. For purposes of ORS 105.170 to 105.185:
(1) “Easement” means a nonpossessory
interest in the land of another which entitles the holders of an interest in
the easement to a private right of way, embodying the right to pass across
another’s land.
(2) “Holders of an interest in an easement”
means those with a legal right to use the easement, including the owner of the
land across which the easement passes if the owner of the land has the legal
right to use the easement. [1989 c.660 §1; 1991 c.49 §1]
105.175
Easement to be kept in repair; sharing costs; agreements. (1) The holders of an interest in any
easement shall maintain the easement in repair.
(2) The cost of maintaining the easement
in repair shall be shared by each holder of an interest in the easement,
pursuant to the terms of any agreement entered into by the parties for that
purpose or any recorded instrument creating the easement. Any such agreement,
or a memorandum thereof, shall be recorded in the real property records of the
county in which the easement is located. Failure to record the agreement shall
not affect the enforceability of the agreement among the parties to the
agreement and any other person with actual notice of the agreement.
(3) The cost of maintaining the easement
in repair in the absence of an agreement and in the absence of maintenance
provisions in a recorded instrument creating the easement shall be shared by
each holder of an interest in the easement in proportion to the use made of the
easement by each holder of an interest in the easement.
(4) Unless inconsistent with an agreement
between the holders of an interest in an easement or a recorded instrument
creating the easement, in determining proportionate use and settling conflicts
the following guidelines apply:
(a) The frequency of use and the size and
weight of vehicles used by the respective parties are relevant factors.
(b) Unless inappropriate, based on the
factors contained in paragraph (a) of this subsection or other relevant
factors, costs for normal and usual maintenance of the easement and costs of
repair of the easement damaged by natural disasters or other events for which
all holders of an interest in the easement are blameless may be shared on the
basis of percentages resulting from dividing the distance of total normal usage
of all holders of an interest in the easement into the normal usage distance of
each holder of an interest in the easement.
(c) Those holders of an interest in the
easement that are responsible for damage to the easement because of negligence
or abnormal use shall repair the damage at their sole expense. [1989 c.660 §§2,3,4;
1991 c.49 §2]
105.180
Action for failure to comply with duty of holder; recovery of costs;
arbitration. (1) If any
holder of an interest in an easement fails to maintain the easement contrary to
an agreement or contrary to the maintenance provisions of a recorded instrument
creating the easement or, in the absence of an agreement or recorded instrument
imposing maintenance obligations, fails after demand in writing to pay the
holder’s proportion of the cost as indicated in ORS 105.175 (3) and (4), a
civil action for money damages or specific performance or contribution may be
brought against that person in a court of competent jurisdiction by one or more
of the other holders of an interest in the easement, either jointly or
severally. In any such civil action, the court may order such equitable relief
as may be just in the circumstances. Nothing in ORS 105.170 to 105.185 shall
impose a maintenance obligation on the holder of an interest in an easement
based on the maintenance provisions in an instrument creating the easement if
such holder is not a party to such instrument, whether the instrument is
recorded or not, after such holder ceases to use the easement.
(2) The prevailing party shall recover all
court costs, arbitration fees and attorney fees.
(3) Any holder of an interest in the
easement may apply to the court of competent jurisdiction where the easement is
located and that has jurisdiction over the amount in controversy for the
appointment of an impartial arbitrator to apportion the cost, and the matter
may be arbitrated in accordance with ORS 36.600 to 36.740. The application may
be made before, during or after performance of the maintenance work. [1989
c.660 §5; 1991 c.49 §3; 2003 c.598 §34]
105.185
Application of ORS 105.170 to 105.185. The provisions of ORS 105.170 to 105.185:
(1) Apply to all easements existing on or
created after January 1, 1992; and
(2) Do not apply to rights of way held or
used by providers of public services including, but not limited to, railroad
common carriers, pipeline companies, public utilities, electric cooperatives,
people’s utility districts, water utility districts, municipally owned
utilities and telecommunications utilities, when used for the sole purpose of
provision of service or maintaining or repairing facilities for the provision
or distribution of service. [1989 c.660 §6; 1991 c.49 §4]
MODIFICATION OF
LEASE TERMS
105.190
Covenant of good faith and fair dealing; rights and obligations of parties. Whenever a covenant of good faith and fair
dealing is implied in the lease of real property, a party’s rights or duties
under such covenant may be modified only by express provision in the lease
agreement. [1997 c.845 §1]
PARTITION
105.205
Who may maintain partition.
When several persons hold real property as tenants in common, in which one or
more of them have an estate of inheritance, or for life or years, or when
several persons hold as tenants in common a vested remainder or reversion in
any real property, any one or more of them may maintain a suit for the
partition of the real property according to the respective rights of the
persons interested therein, and for a sale of all or a part of the property if
it appears that a partition cannot be had without great prejudice to the owner.
105.210
When and how partition prevented. (1) If the court finds that the property can neither be partitioned
nor sold without great prejudice to the owners, the court may receive evidence
as to the value of the respective interests, fix the value thereof, and make an
order permitting an owner to borrow money upon the property with which to pay
off the interest, as so fixed, of another owner. Subject to subsection (2) of this
section, an owner whose interest in the property is to be satisfied shall be
fully discharged by proof of payment filed with the court of the amount fixed
by the court as the value of that owner’s interest. A discharged owner shall
have no further interest in or claim upon the property.
(2) A court may not order the discharge of
an interest of a public body in real property without the consent of the
governing body of the public body. [Amended by 2001 c.606 §1]
105.215
Complaint. The interest of
all known and unknown persons in the property shall be specifically and
particularly set forth in the complaint for partition, as far as known to the
plaintiff. If one or more of the parties, or the share or quantity of interest
of any of the parties, is unknown to the plaintiff or is uncertain or
contingent, or if the ownership of the inheritance depends upon an executory
devise, or the remainder is a contingent remainder, so that the parties cannot
be named, that fact shall be set forth in the complaint.
105.220
Tenants and lien creditors as defendants; liens on undivided interests. The plaintiff shall make a tenant in dower,
by the curtesy, for life or for years of any portion of the entire property and
creditors having a lien upon any portion of the property defendants in the
suit. When the lien is upon an undivided interest or estate of any of the
parties and a partition is made, it is thenceforth a lien only upon the share
assigned to such party; but such share shall be first charged with its just
proportion of the cost of the partition in preference to such lien.
105.225
Summons; to whom directed.
The summons shall be directed by name to all the tenants in common who are
known, to all lien creditors who are made parties to the suit and generally to
all persons unknown having or claiming an interest or estate in the property.
105.230
Service by publication. If a
party having a share or interest in or lien upon the property is unknown or
cannot be found, and such fact is made to appear by affidavit, the summons may
be served on the unknown or unlocated party by publication, directed by the
court or judge, as in ordinary cases. When service of the summons is made by
publication it must be accompanied by a brief description of the property which
is the subject of the suit. [Amended by 1979 c.284 §95]
105.235
Answer. The defendant shall
set forth in the answer the nature and extent of the interest of the defendant
in the property. If the defendant is a lien creditor the defendant shall set
forth how the lien was created, the amount of the debt secured thereby and
remaining due, and whether such debt is secured in any other way, and if so,
the nature of the other security.
105.240
Rights determinable; ascertainment of title where defendant defaults or sale is
necessary. The rights of the
plaintiffs and defendants may be put in issue, tried and determined in the
suit. If a defendant fails to answer, or if a sale of the property is
necessary, the title shall be ascertained by proof to the satisfaction of the court
before the judgment for partition or sale is given. [Amended by 2003 c.576 §361]
105.245
105.250
Compensation when equal partition cannot be made. When it appears that partition cannot be
made without prejudice to the rights and interests of some of the parties, the
court may adjudge compensation to be made by one party to another on account of
the inequality of partition. Compensation shall not be required to be paid to
others by owners unknown, nor by infants unless it appears that an infant has
personal property sufficient for that purpose, and that the interest of the
infant will be promoted thereby.
105.255
How referees make partition; report. In making the partition the referees shall divide the property and
allot the several portions thereof to the respective parties, quality and
quantity relatively considered, according to the respective rights of the
parties as determined by the court. They shall designate the several portions
by proper landmarks, and may employ a surveyor with the necessary assistants to
aid them. The referees shall make a report of their proceedings, specifying
therein the manner of executing their trust and describing the property divided
and the shares allotted to each party with a particular description of each
share.
105.260
Power of court over report; final judgment. The court may confirm or set aside the report in whole or in part and
if necessary appoint new referees. Upon the report being confirmed, a judgment
shall be given stating that the partition shall be effectual forever. Except as
provided in ORS 105.265, the judgment is binding and conclusive:
(1) On all parties named therein, and
their legal representatives, who have at the time any interest in any part of
the property divided as owners in fee or as tenants for life or for years.
(2) On all parties named therein, and
their legal representatives, entitled to the reversion, remainder or
inheritance of the property or any part thereof after the termination of a particular
estate therein, or who by any contingency may be entitled to a beneficial
interest in the property.
(3) On all parties named therein, or their
legal representatives, who have an interest in any undivided share of the
property as tenants for years or for life.
(4) On all persons interested in the
property who are unknown, to whom notice was given of the application for
partition by publication, as directed by ORS 105.230.
(5) On all persons claiming from parties
or persons listed in subsections (1) to (4) of this section. [Amended by 2003
c.576 §363]
105.265
Persons not affected by judgment. The judgment provided for in ORS 105.260 shall not affect tenants for
years or for life of the whole of the property which is the subject of
partition. Except as provided in ORS 105.260, the judgment and partition shall
not preclude any person from claiming title to the property in question, or
from controverting the title of the parties between whom the partition was
made. [Amended by 2003 c.576 §364]
105.270
Order of sale on referees’ report. If the referees report to the court that the property to be
partitioned, or any separate portion thereof, is so situated that a partition
thereof cannot be made without great prejudice to the owners, and the court is
satisfied that the report is correct, it may, by an order, direct the referees
to sell the property or separate portion thereof so situated. [Amended by 2003
c.576 §365]
105.275
Conclusiveness of order confirming report. If the report of the referee is confirmed the order of confirmation is
binding and conclusive upon all parties to the suit.
105.280
How sale made; notice of sale.
All sales of real property made by the referees shall be made by public auction
to the highest bidder in the manner required for the sale of real property on
execution. The notice shall state the terms of sale. If the property or any
part of it is to be sold subject to a prior estate, charge or lien, that fact
shall be stated in the notice.
105.285
Distribution of proceeds of sale. The proceeds of the sale of encumbered property shall be distributed
by the judgment of the court as follows:
(1) To pay the property’s just proportion
of the general costs of the suit.
(2) To pay the costs of the reference.
(3) To satisfy the several liens in their
order of priority, by payment of the sums due and to become due, according to
the judgment.
(4) The residue among the owners of the
property sold, according to their respective shares. [Amended by 2003 c.576 §366]
105.290
Distribution of proceeds by referee or payment into court. The proceeds of sale and the securities
taken by the referees, or any part thereof, shall be distributed by them to the
persons entitled thereto whenever the court so directs. If no such direction is
given, all proceeds and securities shall be paid into court or deposited as
directed by the court.
105.295
Continuance of suit after proceeds paid into court. When the proceeds of sales of any shares or
parcel belonging to known persons who are parties to the suit are paid into
court, the suit may be continued as between such parties for the determination
by the court of their respective claims thereto. Further testimony may be taken
in court, or by a referee, at the discretion of the court, and the court may,
if necessary, require the parties to present the facts or law in controversy by
pleadings as in an original suit.
105.300
When lienholder has other securities. Whenever any party to the suit, who holds a lien upon any part of the
property has other securities for the payment of the amount of the lien, the
court may, in its discretion, order the securities to be exhausted before a
distribution of the proceeds of sale, or may order a just deduction to be made
from the amount of the lien on the property.
105.305
Credit allowed. The court
shall, in the order of sale, direct the terms of credit which may be allowed
for the purchase money of any portion of the premises which it may direct to be
sold on credit; and for that portion of which the purchase money is required by
ORS 105.370 to be invested for the benefit of unknown owners, infants or
parties out of the state. The referees may take separate mortgages and other
securities for the whole or convenient portions of the purchase money of such
parts of the property as are directed by the court to be sold on credit, in the
name of the clerk of the court and the clerk’s successor in office. When there
is a known owner of full age, the security for the share of the owner shall be
executed in the name of the owner.
105.310
Setting off estate for life or years in part not sold. When only a part of the property is ordered
to be sold, the whole of an estate for life or years in an undivided share of
the property may be set off in any part of the property not ordered to be sold.
105.315
Disposition of life estate or leasehold. When the estate of any tenant for life or years in any undivided part
of the property in question was admitted by the parties or ascertained by the
court to be existing at the time of the order of sale, and the person entitled
to such estate was made a party to the suit, the estate may be first set off
out of any part of the property and a sale made of such parcel subject to the
tenants prior unsold estate; but if in the judgment of the court a due regard
to the interest of all the parties requires that such estate should also be
sold, the sale of the estate may be ordered.
105.320
Compensation of tenants in case of sale. Any person entitled to an estate for life or years in any undivided part
of the property, whose estate has been sold, shall be entitled to receive such
sum in gross as is, deemed, upon principles of law applicable to annuities, a
reasonable satisfaction for the estate. If the person so entitled consents to
that sum, the person shall accept it by executing an instrument that is duly
acknowledged or proved in the same manner as deeds for the purpose of record,
and filed with the clerk.
105.325
When court determines value of tenancy. If a tenant does not consent pursuant to ORS 105.320, before the
report of sale, the court shall ascertain and determine what proportion of the
proceeds of the sale, after deducting expenses, will be a just and reasonable
sum to be invested for the tenant’s benefit, and shall order that sum to be deposited
in court for that purpose.
105.330
Rules for determining value of certain estates. The proportion of the proceeds of the sale
to be invested, as provided in ORS 105.325, shall be ascertained and determined
as follows:
(1) If an estate in dower or curtesy is
included in the order of sale its proportion shall be one-half of the proceeds
of the sale of the property, or of the sale of the undivided share in the
property upon which the claim or dower existed.
(2) If any other estate for life or years
is included in the order of sale its proportion shall be the whole proceeds of
the sale of the property, or of the sale of an undivided share of the property
in which the estate existed.
105.335
Protection of unknown tenants.
If any person entitled to an estate for life or years is unknown, the court
shall provide for the protection of the rights of the person in the same
manner, as far as possible, as if the person were known and had appeared.
105.340
Provision for future rights or interests. In all cases of sales in partition when it appears that any person has
a vested or contingent future right or estate in any of the property sold, the
court shall ascertain and settle the proportional value of the contingent or
vested right or estate according to the principles of law applicable to
annuities and survivorship, and shall direct such proportion of the proceeds of
sale to be invested, secured or paid over in such manner as to protect the
rights and interests of the parties. [Amended by 1969 c.591 §282]
105.345
Notice of terms of sale; separate sale of distinct parcels. In all cases of sales of property, the terms
shall be known at the time. If the premises consist of distinct farms or lots
they shall be sold separately, or otherwise if the court so directs.
105.350
Purchase by referee, conservator or guardian forbidden. Neither of the referees, nor any person for
the benefit of either of them, shall be interested in any purchase at a
partition sale; nor shall the guardian or conservator of the estate of an
infant party be interested in the purchase of any real property that is the
subject of the suit, except for the benefit of the infant. All sales contrary
to the provisions of this section are void. [Amended by 1973 c.823 §99]
105.355
Report of sale. After
completing the sale the referees shall report it to the court with the
description of the different parcels of land sold to each purchaser, the name
of the purchaser, the price paid or secured, the terms and conditions of the
sale and the securities, if any, taken. The report shall be filed with the
clerk.
105.360
Exception to report; confirmation of sale; order of confirmation. The report of sale may be excepted to by any
party entitled to a share of the proceeds in like manner and with like effect
as in ordinary cases. If the sale is confirmed the order of confirmation shall
direct the referees to execute conveyances and take securities pursuant to the
sale, which acts they are hereby authorized to do. The order shall discharge
the property of the estate or interest of every person mentioned in ORS 105.260
and of tenants for life or years of the property sold. The order shall be
binding and conclusive upon all such persons as if it were a judgment for the
partition of such property and except as provided in ORS 105.350, upon all
persons whomsoever as to the regularity of the proceedings concerning such
sale. [Amended by 2003 c.576 §367]
105.365
Purchase by encumbrancer or party entitled to share. When a party entitled to a share of the
property, or an encumbrancer entitled to have the lien of the encumbrancer paid
out of the sale, becomes a purchaser, the referees may take a receipt for so
much of the proceeds of the sale as belongs to the party or the encumbrancer.
105.370
Investment of proceeds for certain parties. When there are proceeds of sale belonging to an unknown owner, or to a
person without the state who has no legal representative within it, or when
there are proceeds arising from the sale of an estate subject to the prior
estate of a tenant for life or years, which are paid into court or otherwise
deposited by order of the court, such proceeds shall be invested in securities
on interest for the benefit of the persons entitled thereto.
105.375
In whose name securities taken or investments made. Except as provided in ORS 105.380, security
for the proceeds of sale shall be taken or investments of the proceeds shall be
made in the name of the clerk of the court and the clerk’s successors in
office, who shall hold the same for the use and benefit of the parties
interested, subject to the order of the court.
105.380
When securities are payable to parties. When security is taken by the referees on a sale, and the parties
interested in the security, by an instrument in writing under their hands
delivered to the referees, agree upon the shares and proportions to which they
are entitled, or when shares and proportions have been previously adjudged by
the court, the securities shall be taken in the names of and payable to the
parties entitled thereto, and shall be delivered to such parties upon their
receipt therefor. Such agreement and receipt shall be returned and filed with
the clerk.
105.385
Clerk’s treatment of securities and investments. The clerk in whose name a security is taken
or by whom an investment is made, and the clerk’s successors in office, shall
receive the interest and principal as it becomes due and apply and invest it as
the court may direct. The clerk shall file in the office of the clerk all
securities taken, and keep an account in a book provided and kept for that
purpose in the office, free for inspection by all persons, of investments and
moneys received and disposed of by the clerk.
105.390
When proceeds paid to conservator or guardian of infant. When the share of an infant is sold, the
proceeds of the sale may be paid by the referees making the sale to the
guardian of the infant, the conservator of the estate of the infant or the
special guardian appointed for the infant in the suit, upon the guardian or
conservator giving the security required by law or ordered by the court. [Amended
by 1973 c.823 §100]
105.395
Payment of proceeds to conservator of incapacitated person. When the interest in real property of an
incapacitated person has been sold, the share of the incapacitated person of
the proceeds shall be given, on the behalf of the incapacitated person, to the
conservator of the estate of the incapacitated person if the conservator
executes, with sufficient sureties, an undertaking approved by the judge of the
court, that the conservator will faithfully discharge the trust reposed in the
conservator and will render a true and just account to the person entitled to
the proceeds or to the legal representative of the person. [Amended by 1973
c.823 §101]
105.400
When conservator or guardian may consent to partition. When an infant or an incapacitated person is
interested in real estate held in common or in any other manner so as to
authorize the infant or incapacitated person being made a party to an action
for the partition thereof, the guardian of the infant or incapacitated person
or the conservator of the estate of the infant or incapacitated person may
consent to a partition without suit and agree upon the share to be set off to
the infant or incapacitated person. When the court so orders, the guardian or
conservator may execute a release on behalf of the infant or other
incapacitated person to the owners of the other shares of the parts to which
they are respectively entitled. [Amended by 1973 c.823 §102; 1987 c.158 §17]
105.405
Costs and expenses of partition. (1) The expenses of the referees, including those of a surveyor and
assistants of the surveyor when employed, shall be ascertained and allowed by
the court, and the amount thereof, together with the fees allowed by law to the
referees, shall be paid by the plaintiff, and may be allowed as part of the
costs of partition.
(2) The reasonable costs of partition,
including reasonable attorney fees and disbursements, that are for services
performed for the common benefit of all parties, shall be paid by the parties
that will share in the lands divided in proportion to their respective
interests therein, and shall be included and specified in the judgment. They
shall be a lien on the several shares, and the judgment may be enforced by
execution against the parties separately. When, however, a controversy arises
between some of the parties only, the court may require the expense of such
controversy to be paid by any of, or all, the parties thereto. [Amended by 1971
c.502 §1; 2003 c.576 §368]
HOUSING
RECEIVERSHIP
105.420
Findings; policy. (1) The
Legislative Assembly recognizes that there exists residential property in this
state that is insanitary and unsafe and that many citizens, especially those
with lower incomes, are forced to live in and occupy these properties.
(2) The Legislative Assembly further
recognizes that there are residential properties in this state that have not
been maintained in compliance with basic sanitary and habitability standards
and which have become abandoned. These conditions contribute to the spread of
disease and criminal activity, create urban blight and community deterioration,
adversely affect the state’s economic and social viability and otherwise
detrimentally impact the public’s health, safety and welfare.
(3) In order to correct these conditions,
it is necessary to revitalize these residential properties and thus add to the
overall housing stock of this state. The Legislative Assembly deems it
necessary to authorize county and municipal governments to adopt and implement
receivership programs to allow for the upgrading of substandard and abandoned
residential properties. [1989 c.649 §2]
105.425
Definitions for ORS 105.420 to 105.445 and 105.455. As used in ORS 105.420 to 105.445 and
105.455:
(1) “Abatement” means the removal or
correction of any condition at a property including demolition that violates
the provisions of any duly enacted building or housing code, as well as the
making of such other improvements or corrections as are needed to effect the
rehabilitation of the property or structure, but not including the closing or
physical securing of the structure.
(2) “Building code” or “housing code”
means any law, ordinance or governmental regulation concerning habitability or
the construction, maintenance, operation, occupancy, use or appearance of any
property.
(3) “Governing body” means the city
council, board of commissioners, county court or other managing board of a
municipality or county.
(4) “Interested party” means any person or
entity that possesses any legal or equitable interest of record in the
property, including but not limited to the holder of any lien or encumbrance of
record on the property.
(5) “Property” means real property and all
improvements thereon including edifices, structures, buildings, unit or part
thereof used or intended to be used for residential purposes including
single-family, duplex, multifamily structures and mixed-use structures which
have one or more residential units. [1989 c.649 §3]
105.430
Receivership for buildings that constitute threat to public health, safety or
welfare; procedure. (1) If
residential property is found to be in violation of building or housing codes
which the city or county, in the exercise of reasonable discretion believes
constitutes a threat to the public health, safety or welfare, the city or
county in addition to any other remedies available to it may apply to a court
of competent jurisdiction for the appointment of a receiver to perform an
abatement.
(2) At least 60 days prior to the filing
of an application for appointment of a receiver pursuant to ORS 105.420 to
105.455, the city or county shall give written notice by regular mail to all
interested parties of its intent to file the application and information
relative to:
(a) The identity of the property;
(b) The violations of the building or
housing codes giving rise to the application for the receiver;
(c) The name, address and telephone number
of the person or department where additional information can be obtained
concerning violations and their remedy; and
(d) The city or county which may seek the
appointment of a receiver pursuant to ORS 105.420 to 105.455 unless action is
taken within 60 days by an interested party.
(3) A city or county may not apply for the
appointment of a receiver pursuant to ORS 105.420 to 105.455 if an interested
party has commenced and is then prosecuting in a timely fashion an action or
other judicial or nonjudicial proceeding to foreclose a security interest on
the property, or to obtain specific performance of or forfeit the purchaser’s
interest in under a land sale contract.
(4) Notice of the application for the
appointment of a receiver pursuant to ORS 105.420 to 105.455 shall be served on
all interested parties.
(5) If, following the application for
appointment of a receiver, one or more of the interested parties elects to
correct the conditions at the property giving rise to the city’s or county’s
application for the appointment of a receiver, the party or parties shall be
required to post security in an amount and character as the court deems
appropriate to insure timely performance of all work necessary to make
corrections, as well as such other conditions as the court deems appropriate to
effect the timely completion of the corrections by the interested party or
parties.
(6) In the event that no interested party
elects to act pursuant to subsection (5) of this section or fails to timely
perform work undertaken pursuant to subsection (5) of this section, the court
shall make a determination that the property is an unsafe or insanitary
condition and appoint a receiver to complete the abatement.
(7) A receiver may be any one of the
following:
(a) A housing authority organized under
the terms of ORS 456.055 to 456.235;
(b) An urban renewal agency organized
under the terms of ORS 457.035 to 457.320;
(c) A private not-for-profit corporation,
the primary purpose of which is the improvement of housing conditions within
the city or county; or
(d) A city or county agency, bureau or
similar subdivision designated by the city or county as being responsible for
the rehabilitation of property.
(8) A receiver appointed by the court
pursuant to ORS 105.420 to 105.455 shall not be required to give security or
bond of any sort prior to appointment. [1989 c.649 §4; 1995 c.79 §34]
105.435
Authority of receiver; financing agreements; fee; abatement work exempt from
public contracting law. (1)
A receiver appointed by the court, pursuant to ORS 105.420 to 105.455, shall
have the authority to do any or all of the following unless specifically
limited by the court:
(a) Take possession and control of the
property including the right to enter, modify and terminate tenancies pursuant
to ORS 105.105 to 105.161 and to charge and collect rents derived therefrom,
applying said sum to the costs incurred due to the abatement and receivership;
(b) Negotiate contracts and pay all
expenses associated with the operation and conservation of the property
including, but not limited to, all utility, fuel, custodial, repair or
insurance costs;
(c) Pay all accrued property taxes,
penalties, assessments and other charges imposed on the property by a unit of
government as well as any accruing charge of like nature accruing during the
pendency of the receivership;
(d) Dispose of any or all abandoned
personal property found at the structure; and
(e) Enter into contracts and pay for the
performance of any work necessary to complete the abatement.
(2) In addition to the powers set forth in
subsection (1) of this section, the receiver may, under such terms and
condition as a court shall allow, enter into financing agreements with public
or private lenders and encumber the property therewith so as to have moneys
available to correct the conditions at the property giving rise to the
abatement.
(3) A receiver may charge an
administrative fee at an hourly rate approved by the court or at a rate of 15
percent of the total cost of the abatement, whichever the court deems more
appropriate.
(4) All abatement work done under ORS
105.420 to 105.455 is exempt from the public contracting statutes set forth in
ORS 279C.005, 279C.100 to 279C.125 and 279C.300 to 279C.470 and ORS chapters
279A and 279B, except ORS 279A.125, 279A.250 to 279A.290 and 279B.235. [1989
c.649 §§5,6; 2003 c.794 §196]
105.440
Review of abatement expenditures by court; lien for unpaid expenses. (1) All moneys expended and all costs and
obligations incurred by the receiver in performing the abatement shall be
reviewed by the court for reasonableness and their necessity in performing the
abatement. To the extent that the court finds the moneys, costs or obligations,
or any combination thereof, to be reasonable and necessary, it shall issue an
order reciting this fact as well as the amount found to be reasonable and
necessary.
(2) If the costs and obligations incurred
due to the abatement have not been paid, the order of the court shall be filed
with the county recorder within 60 days of its filing with the court and shall
thereafter constitute a lien on the property. [1989 c.649 §7]
105.445
Effect on purchase money security interest of lien for unpaid abatement
expenses. (1) As used in
this section, “purchase money security interest” means:
(a) The interest of a vendor under a land
sale contract pertaining to the property if the contract was recorded prior to
the issuance of the notice under ORS 105.430 (2);
(b) The interest of a mortgagee under a
purchase money mortgage if the mortgage was recorded prior to the issuance of
the notice under ORS 105.430 (2); or
(c) The interest of a beneficiary under a
purchase money trust deed if the trust deed was recorded prior to the issuance
of the notice under ORS 105.430 (2).
(2) Notwithstanding any other provision of
law or any purchase money security interest, the issuance of the notice under
ORS 105.430 (2) shall constitute a default under the purchase money security
interest, and if the violations of the building or housing codes listed in the
notice are not corrected within 30 days after the mailing of the notice, the
vendor, mortgagee or beneficiary under the purchase money security interest may
commence proceedings to exercise the remedies set forth in the purchase money
security interest.
(3) A lien created by ORS 105.440 (2)
shall be prior and superior to any purchase money security interest in the
property if:
(a) The city or county gave the holder of
the purchase money security interest and any vendee, mortgagor or grantor under
such purchase money security interest the notice required under ORS 105.430
(2); and
(b) The holder of the purchase money
security interest has not, prior to the appointment of a receiver under ORS
105.430 (6), initiated proceedings or taken other action to foreclose the
purchase money security interest or to otherwise gain possession of the
property.
(4) A lien created under ORS 105.440 (2)
shall, except for property tax liens, assessment liens, liens created by ORS
87.352 to 87.362 and purchase money security interests not covered by
subsection (3) of this section, be prior and superior to all other liens,
mortgages and encumbrances against the property upon which it is imposed
without regard to whether the other liens, mortgages or encumbrances attached
to the property before or after the lien created by ORS 105.440 (2) attached. [1989
c.649 §8]
105.450
Termination of receivership.
The receivership authorized pursuant to the terms of ORS 105.420 to 105.455
shall terminate only by an order of the court after a showing by an interested
party or the receiver that:
(1) The abatement has been completed;
(2) The costs and obligations incurred due
to the abatement have been paid by an interested party or a lien has been filed
pursuant to ORS 105.440; and
(3) The interested party will manage the
property in conformance with applicable housing codes. [1989 c.649 §9]
105.455
Short title. ORS 105.420 to
105.430 and 105.455 may be cited as the Oregon Housing Receivership Act. [1989
c.649 §1]
SELLER’S PROPERTY
DISCLOSURE STATEMENT
105.462
Definitions for ORS 105.462 to 105.490. For purposes of ORS 105.462 to 105.490:
(1) “Financial institution” has the
meaning given that term in ORS 706.008. “Financial institution” includes a:
(a) Trust company, as that term is defined
in ORS 706.008;
(b) Mortgage banker, as that term is defined
in ORS 59.840;
(c) Mortgage broker, as that term is
defined in ORS 59.840; and
(d) Consumer finance company that is
licensed under ORS chapter 725.
(2) “Real estate licensee” has the meaning
given that term in ORS 696.010. [2003 c.328 §4; 2005 c.287 §1]
105.464
Form of seller’s property disclosure statement. A seller’s property disclosure statement
must be in substantially the following form:
______________________________________________________________________________
If required under
ORS 105.465, a seller shall deliver in substantially the following form the
seller’s property disclosure statement to each buyer who makes a written offer
to purchase real property in this state:
______________________________________________________________________________
INSTRUCTIONS TO
THE SELLER
Please complete
the following form. Do not leave any spaces blank. Please refer to the line
number(s) of the question(s) when you provide your explanation(s). If you are
not claiming an exclusion or refusing to provide the form under ORS 105.475
(4), you should date and sign each page of this disclosure statement and each
attachment.
Each seller of
residential property described in ORS 105.465 must deliver this form to each
buyer who makes a written offer to purchase. Under ORS 105.475 (4), refusal to
provide this form gives the buyer the right to revoke their offer at any time
prior to closing the transaction. Use only the section(s) of the form that
apply to the transaction for which the form is used. If you are claiming an
exclusion under ORS 105.470, fill out only Section 1.
An exclusion may
be claimed only if the seller qualifies for the exclusion under the law. If not
excluded, the seller must disclose the condition of the property or the buyer
may revoke their offer to purchase anytime prior to closing the transaction.
Questions regarding the legal consequences of the seller’s choice should be
directed to a qualified attorney.
______________________________________________________________________________
(DO NOT FILL
OUT THIS SECTION UNLESS YOU ARE CLAIMING AN EXCLUSION UNDER ORS 105.470)
Section 1.
EXCLUSION FROM ORS 105.462 TO 105.490:
You may claim an
exclusion under ORS 105.470 only if you qualify under the statute. If you are
not claiming an exclusion, you must fill out Section 2 of this form completely.
Initial only the
exclusion you wish to claim.
_____ This is the
first sale of a dwelling never occupied. The dwelling is constructed or
installed under building or installation permit(s) #_____, issued by________.
_____ This sale is
by a financial institution that acquired the property as custodian, agent or
trustee, or by foreclosure or deed in lieu of foreclosure.
_____ The seller
is a court appointed receiver, personal representative, trustee, conservator or
guardian.
_____ This sale or
transfer is by a governmental agency.
______________________
Signature(s) of Seller claiming exclusion
Date ________
______________________
Buyer(s) to acknowledge Seller’s claim
Date ________
______________________________________________________________________________
(IF YOU DID NOT
CLAIM AN EXCLUSION IN SECTION 1, YOU MUST FILL OUT THIS SECTION.)
Section 2. SELLER’S
PROPERTY DISCLOSURE STATEMENT
(NOT A WARRANTY)
(ORS 105.464)
NOTICE TO THE
BUYER: THE FOLLOWING REPRESENTATIONS ARE MADE BY THE SELLER(S) CONCERNING THE
CONDITION OF THE PROPERTY LOCATED AT _______________ (“THE PROPERTY”).
DISCLOSURES
CONTAINED IN THIS FORM ARE PROVIDED BY THE SELLER ON THE BASIS OF SELLER’S
ACTUAL KNOWLEDGE OF THE PROPERTY AT THE TIME OF DISCLOSURE. BUYER HAS FIVE DAYS
FROM THE SELLER’S DELIVERY OF THIS SELLER’S DISCLOSURE STATEMENT TO REVOKE
BUYER’S OFFER BY DELIVERING BUYER’S SEPARATE SIGNED WRITTEN STATEMENT OF
REVOCATION TO THE SELLER DISAPPROVING THE SELLER’S DISCLOSURE STATEMENT, UNLESS
BUYER WAIVES THIS RIGHT AT OR PRIOR TO ENTERING INTO A
FOR A MORE
COMPREHENSIVE EXAMINATION OF THE SPECIFIC CONDITION OF THIS PROPERTY, BUYER IS
ADVISED TO OBTAIN AND PAY FOR THE SERVICES OF A QUALIFIED SPECIALIST TO INSPECT
THE PROPERTY ON BUYER’S BEHALF INCLUDING, FOR EXAMPLE, ONE OR MORE OF THE
FOLLOWING: ARCHITECTS, ENGINEERS, PLUMBERS, ELECTRICIANS, ROOFERS,
ENVIRONMENTAL INSPECTORS, BUILDING INSPECTORS, CERTIFIED HOME INSPECTORS, OR
PEST AND DRY ROT INSPECTORS.
Seller _____ is/ _____
is not occupying the property.
I. SELLER’S
REPRESENTATIONS:
The following are
representations made by the seller and are not the representations of any
financial institution that may have made or may make a loan pertaining to the
property, or that may have or take a security interest in the property, or any
real estate licensee engaged by the seller or the buyer.
*If you mark yes
on items with *, attach a copy or explain on an attached sheet.
1. TITLE
A. Do you have legal authority to sell the property? [ ]Yes [
]No [ ]Unknown
*B. Is title to the property subject to any of the
following: [
]Yes [ ]No [ ]Unknown
(1) First right of refusal
(2) Option
(3) Lease or rental agreement
(4) Other listing
(5) Life estate?
*C. Is the property being transferred an
unlawfully established unit of land? [ ]Yes [
]No [ ]Unknown
*D. Are there any encroachments, boundary
agreements, boundary disputes or recent
boundary changes? [
]Yes [ ]No [ ]Unknown
*E. Are there any rights of way, easements,
licenses, access limitations or claims that
may affect your interest in the property? [ ]Yes [ ]No [ ]Unknown
*F. Are there any agreements for joint
maintenance of an easement or right of way? [ ]Yes [
]No [ ]Unknown
*G. Are there any governmental studies, designations,
zoning overlays, surveys or notices that would
affect the property? [
]Yes [ ]No [ ]Unknown
*H. Are there any pending or existing governmental
assessments against the property? [ ]Yes [
]No [ ]Unknown
*I. Are there any zoning violations or
nonconforming uses? [
]Yes [ ]No [ ]Unknown
*J. Is there a boundary survey for the
property? [
]Yes [ ]No [ ]Unknown
*K. Are there any covenants, conditions,
restrictions or private assessments that
affect the property? [
]Yes [ ]No [ ]Unknown
*L. Is the property subject to any special tax
assessment or tax treatment that may result
in levy of additional taxes if the property
is sold? [
]Yes [ ]No [ ]Unknown
2. WATER
A. Household water
(1) The source of the water is (check ALL that apply):
[ ]Public [ ]Community [ ]Private
[ ]Other ________
(2) Water source information:
*a. Does the water source require a water permit? [ ]Yes [
]No [ ]Unknown
If yes, do you have a permit? [
]Yes [ ]No
b. Is the water source located on the property? [ ]Yes [ ]No [ ]Unknown
*If not, are there any written agreements for
a shared water source? [
]Yes [ ]No [ ]Unknown [ ]NA
*c. Is there an easement (recorded or unrecorded)
for your access to or maintenance of the water
source? [
]Yes [ ]No [ ]Unknown
d. If the source of water is from a well or spring,
have you had any of the following in the past
12 months? [ ]Flow test [ ]Bacteria test
[ ] Chemical contents test [
]Yes [ ]No [ ]Unknown [ ]NA
*e. Are there any water source plumbing problems
or needed repairs? [
]Yes [ ]No [ ]Unknown
(3) Are there any water treatment systems for
the property? [
]Yes [ ]No [ ]Unknown
[ ]Leased [ ]Owned
B. Irrigation
(1) Are there any [ ] water rights or [ ] other
irrigation rights for the property? [ ]Yes [
]No [ ]Unknown
*(2) If any exist, has the irrigation water been
used during the last five-year period? [ ]Yes [
]No [ ]Unknown [ ]NA
*(3) Is there a water rights certificate or other
written evidence available? [
]Yes [ ]No [ ]Unknown [ ]NA
C. Outdoor sprinkler system
(1) Is there an outdoor sprinkler system for the
property? [
]Yes [ ]No [ ]Unknown
(2) Has a back flow valve been installed? [ ]Yes [
]No [ ]Unknown [ ]NA
(3) Is the outdoor sprinkler system operable? [ ]Yes [ ]No [ ]Unknown [
]NA
3. SEWAGE SYSTEM
A. Is the property connected to a public or
community sewage system? [
]Yes [ ]No [ ]Unknown
B. Are there any new public or community sewage
systems proposed for the property? [ ]Yes [
]No [ ]Unknown
C. Is the property connected to an on-site septic
system? [
]Yes [ ]No [ ]Unknown
If yes, was it installed by permit? [ ]Yes [
]No [ ]Unknown [ ]NA
*Has the system been repaired or altered? [ ]Yes [ ]No [ ]Unknown
Has the condition of the system been
evaluated and a report issued? [ ]Yes [ ]No [ ]Unknown
Has it ever been pumped? [
]Yes [ ]No [ ]Unknown [ ]NA
If yes, when? _______________
*D. Are there any sewage system problems or
needed repairs? [
]Yes [ ]No [ ]Unknown
E. Does your sewage system require on-site
pumping to another level? [
]Yes [ ]No [ ]Unknown
4. DWELLING INSULATION
A. Is there insulation in the:
(1) Ceiling? [
]Yes [ ]No [ ]Unknown
(2) Exterior walls? [
]Yes [ ]No [ ]Unknown
(3) Floors? [
]Yes [ ]No [ ]Unknown
B. Are there any defective insulated doors or
windows? [
]Yes [ ]No [ ]Unknown
5. DWELLING STRUCTURE
*A. Has the roof leaked? [
]Yes [ ]No [ ]Unknown
If yes, has it been repaired? [
]Yes [ ]No [ ]Unknown [ ]NA
B. Are there any additions, conversions or
remodeling? [
]Yes [ ]No [ ]Unknown
If yes, was a building permit required? [ ]Yes [ ]No [
]Unknown [ ]NA
If yes, was a building permit obtained? [ ]Yes [ ]No [
]Unknown [ ]NA
If yes, was final inspection obtained? [ ]Yes [
]No [ ]Unknown [ ]NA
C. Are there smoke alarms or detectors? [ ]Yes [
]No [ ]Unknown
D. Is there a woodstove included in the sale? [ ]Yes [ ]No [ ]Unknown
Make _______________
*E. Has pest and dry rot, structural or
“whole house” inspection been done
within the last three years? [
]Yes [ ]No [ ]Unknown
*F. Are there any moisture problems, areas of
water penetration, mildew odors or other
moisture conditions (especially in the
basement)? [
]Yes [ ]No [ ]Unknown
*If yes, explain on attached sheet the frequency and
extent of problem and any insurance claims,
repairs or remediation done.
G. Is there a sump pump on the property? [ ]Yes [
]No [ ]Unknown
H. Are there any materials used in the
construction of the structure that are or
have been the subject of a recall, class
action suit, settlement or litigation? [ ]Yes [
]No [ ]Unknown
If yes, what are the materials? ________
(1) Are there problems with the materials? [ ]Yes [
]No [ ]Unknown [ ]NA
(2) Are the materials covered by a warranty? [ ]Yes [ ]No [ ]Unknown [
]NA
(3) Have the materials been inspected? [ ]Yes [
]No [ ]Unknown [ ]NA
(4) Have there ever been claims filed for these
materials by you or by previous owners? [ ]Yes [ ]No [ ]Unknown [ ]NA
If yes, when? ________
(5) Was money received? [
]Yes [ ]No [ ]Unknown [ ]NA
(6) Were any of the materials repaired or
replaced? [
]Yes [ ]No [ ]Unknown [ ]NA
6. DWELLING SYSTEMS AND FIXTURES
If the following systems or fixtures are included
in the purchase price, are they in good working
order on the date this form is signed?
A. Electrical system, including wiring, switches,
outlets and service [
]Yes [ ]No [ ]Unknown
B. Plumbing system, including pipes, faucets,
fixtures and toilets [
]Yes [ ]No [ ]Unknown
C. Water heater tank [
]Yes [ ]No [ ]Unknown
D. Garbage disposal [
]Yes [ ]No [ ]Unknown [ ]NA
E. Built-in range and oven [
]Yes [ ]No [ ]Unknown [ ]NA
F. Built-in dishwasher [
]Yes [ ]No [ ]Unknown [ ]NA
G. Sump pump [
]Yes [ ]No [ ]Unknown [ ]NA
H. Heating and cooling systems [
]Yes [ ]No [ ]Unknown [ ]NA
I. Security system [ ]Owned [ ]Leased [ ]Yes [
]No [ ]Unknown [ ]NA
J. Are there any materials or products used in
the systems and fixtures that are or have
been the subject of a recall, class action
settlement or other litigations?