2007 Oregon Code - Chapter 105 :: Chapter 105 - Property Rights
Chapter 105 —
Property Rights
2007 EDITION
PROPERTY RIGHTS
PROPERTY RIGHTS AND TRANSACTIONS
ACTIONS FOR RECOVERY OF REAL PROPERTY
105.005Â Â Â Â Right
of action; recovery; damages
105.010Â Â Â Â Contents
of complaint
105.015Â Â Â Â Answer
105.020Â Â Â Â Substitution
of landlord for tenant
105.025Â Â Â Â Verdict
105.030Â Â Â Â Damages
for withholding; setoff for improvements
105.035Â Â Â Â Judgment
when plaintiffÂ’s right to possession expires
105.040Â Â Â Â Order
to make survey
105.045Â Â Â Â Action
not prejudiced by alienation by person in possession
105.050Â Â Â Â Cotenant
shall prove ouster
105.055Â Â Â Â Conclusiveness
of judgment
105.060Â Â Â Â Effect
of new trial on plaintiffÂ’s possession
105.070Â Â Â Â Rights
of donee under Donation Law
105.075Â Â Â Â Notice
to quit; action to recover possession not affected by forcible entry or wrongful
detainer
105.080Â Â Â Â Reimbursement
of tenants in common obtaining possession; lien
FORCIBLE ENTRY AND WRONGFUL DETAINER
105.105Â Â Â Â Entry
to be lawful and peaceable only
105.110Â Â Â Â Action
for forcible entry or wrongful detainer
105.111Â Â Â Â Stay
of eviction for state service member
105.112Â Â Â Â Action
by tenant to recover personal property; forms
105.113Â Â Â Â Form
of summons
105.115Â Â Â Â Causes
of unlawful holding by force; action for return of possession
105.120Â Â Â Â Notice
necessary to maintain action in certain cases; waiver of notice; effect of
advance payments of rent
105.121Â Â Â Â Forms
in action for possession of group recovery home; limitation on issues; attorney
fees
105.123Â Â Â Â Complaint
105.124Â Â Â Â Form
of complaint if ORS chapter 90 applies
105.126Â Â Â Â Form
of complaint if ORS chapter 90 does not apply
105.128Â Â Â Â Landlord
action to remove perpetrator of domestic violence, sexual assault or stalking
from possession of dwelling unit; retention of possession by victim
105.130Â Â Â Â How
action conducted; fees; surcharge
105.132Â Â Â Â Assertion
of counterclaim
105.135Â Â Â Â Service
and return of summons; posting; contents; use of facsimile
105.137Â Â Â Â Effect
of failure of party to appear; attorney fees; judgment of dismissal; scheduling
of trial; unrepresented defendant
105.138Â Â Â Â Compelling
arbitration; procedure
105.139Â Â Â Â Burden
of proof in certain cases
105.140Â Â Â Â Continuance
105.145Â Â Â Â Judgment
on trial by court; duties of parties to stipulated agreement
105.146Â Â Â Â Failure
of defendant to perform as ordered; judgment of restitution
105.148Â Â Â Â Contesting
plaintiffÂ’s affidavit or declaration of noncompliance; ex parte review of
hearing request; delaying execution upon judgment of restitution
105.149Â Â Â Â Hearing
on compliance with order
105.151Â Â Â Â Enforcement
of judgment of restitution; notice of restitution
105.152Â Â Â Â Form
of notice of restitution for judgment entered under ORS 105.146
105.153Â Â Â Â Form
of notice of restitution for judgment not entered under ORS 105.146
105.156Â Â Â Â Form
of writ of execution for judgment of restitution
105.157Â Â Â Â Form
of eviction trespass notice
105.158Â Â Â Â Service
of notice of restitution
105.159Â Â Â Â Computation
of time before plaintiff may request writ of execution
105.161Â Â Â Â Service
and enforcement of writ of execution and eviction trespass notice
105.165Â Â Â Â Alternative
method of removing, storing and disposing of tenantÂ’s personal property;
requirements; landlord liability
105.168Â Â Â Â Minor
as party in proceedings pertaining to residential dwellings
EASEMENT OWNER OBLIGATIONS
105.170Â Â Â Â Definitions
for ORS 105.170 to 105.185
105.175Â Â Â Â Easement
to be kept in repair; sharing costs; agreements
105.180Â Â Â Â Action
for failure to comply with duty of holder; recovery of costs; arbitration
105.185Â Â Â Â Application
of ORS 105.170 to 105.185
MODIFICATION OF LEASE TERMS
105.190Â Â Â Â Covenant
of good faith and fair dealing; rights and obligations of parties
PARTITION
105.205Â Â Â Â Who
may maintain partition
105.210Â Â Â Â When
and how partition prevented
105.215Â Â Â Â Complaint
105.220Â Â Â Â Tenants
and lien creditors as defendants; liens on undivided interests
105.225Â Â Â Â Summons;
to whom directed
105.230Â Â Â Â Service
by publication
105.235Â Â Â Â Answer
105.240Â Â Â Â Rights
determinable; ascertainment of title where defendant defaults or sale is
necessary
105.245Â Â Â Â
105.250Â Â Â Â Compensation
when equal partition cannot be made
105.255Â Â Â Â How
referees make partition; report
105.260Â Â Â Â Power
of court over report; final judgment
105.265Â Â Â Â Persons
not affected by judgment
105.270Â Â Â Â Order
of sale on refereesÂ’ report
105.275Â Â Â Â Conclusiveness
of order confirming report
105.280Â Â Â Â How
sale made; notice of sale
105.285Â Â Â Â Distribution
of proceeds of sale
105.290Â Â Â Â Distribution
of proceeds by referee or payment into court
105.295Â Â Â Â Continuance
of suit after proceeds paid into court
105.300Â Â Â Â When
lienholder has other securities
105.305Â Â Â Â Credit
allowed
105.310Â Â Â Â Setting
off estate for life or years in part not sold
105.315Â Â Â Â Disposition
of life estate or leasehold
105.320Â Â Â Â Compensation
of tenants in case of sale
105.325Â Â Â Â When
court determines value of tenancy
105.330Â Â Â Â Rules
for determining value of certain estates
105.335Â Â Â Â Protection
of unknown tenants
105.340Â Â Â Â Provision
for future rights or interests
105.345Â Â Â Â Notice
of terms of sale; separate sale of distinct parcels
105.350Â Â Â Â Purchase
by referee, conservator or guardian forbidden
105.355Â Â Â Â Report
of sale
105.360Â Â Â Â Exception
to report; confirmation of sale; order of confirmation
105.365Â Â Â Â Purchase
by encumbrancer or party entitled to share
105.370Â Â Â Â Investment
of proceeds for certain parties
105.375Â Â Â Â In
whose name securities taken or investments made
105.380Â Â Â Â When
securities are payable to parties
105.385Â Â Â Â ClerkÂ’s
treatment of securities and investments
105.390Â Â Â Â When
proceeds paid to conservator or guardian of infant
105.395Â Â Â Â Payment
of proceeds to conservator of incapacitated person
105.400Â Â Â Â When
conservator or guardian may consent to partition
105.405Â Â Â Â Costs
and expenses of partition
HOUSING RECEIVERSHIP
105.420Â Â Â Â Findings;
policy
105.425Â Â Â Â Definitions
for ORS 105.420 to 105.445 and 105.455
105.430Â Â Â Â Receivership
for buildings that constitute threat to public health, safety or welfare;
procedure
105.435Â Â Â Â Authority
of receiver; financing agreements; fee; abatement work exempt from public
contracting law
105.440Â Â Â Â Review
of abatement expenditures by court; lien for unpaid expenses
105.445Â Â Â Â Effect
on purchase money security interest of lien for unpaid abatement expenses
105.450Â Â Â Â Termination
of receivership
105.455Â Â Â Â Short
title
SELLERÂ’S PROPERTY DISCLOSURE STATEMENT
105.462Â Â Â Â Definitions
for ORS 105.462 to 105.490
105.464Â Â Â Â Form
of sellerÂ’s property disclosure statement
105.465Â Â Â Â Application
of ORS 105.462 to 105.490, 696.301 and 696.870; disclosure statement
105.470Â Â Â Â Exclusions
from ORS 105.462 to 105.490, 696.301 and 696.870
105.475Â Â Â Â BuyerÂ’s
statement of revocation of offer; criteria
105.480Â Â Â Â Representations
in disclosure statement; application
105.485Â Â Â Â Allocation
of burden of proof
105.490Â Â Â Â Effect
of ORS 105.462 to 105.490, 696.301 and 696.870 on rights and remedies
ACTIONS AND SUITS FOR NUISANCES
105.505Â Â Â Â Remedies
available for private nuisance
105.510Â Â Â Â Procedure
for abating a nuisance
105.515Â Â Â Â Stay
of issuance of warrant to abate
105.520Â Â Â Â Justification
of sureties; proceedings when nuisance is not abated
ABATEMENT OF NUISANCE ACTIVITIES OR
CONDITIONS
105.550Â Â Â Â Definitions
for ORS 105.550 to 105.600
105.555Â Â Â Â Places
declared nuisances subject to abatement
105.560Â Â Â Â Action
to restrain or enjoin nuisance; jurisdiction; remedies
105.565Â Â Â Â Complaint;
service; jury trial; admissibility of reputation as evidence
105.575Â Â Â Â Precedence
of action on court docket
105.580Â Â Â Â Order
of abatement; cancellation
105.585Â Â Â Â Costs
of securing or decontaminating property as lien; priority of lien; filing
notice of pendency
105.590Â Â Â Â Intentional
violation of order punishable as contempt; fine; imprisonment
105.595Â Â Â Â Action
to abate nuisance not to affect other remedies; exception
105.600Â Â Â Â 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
105.605Â Â Â Â Suits
to determine adverse claims
105.610Â Â Â Â Suit
to cancel patent of donee under Donation Law
105.615Â Â Â Â Action
by tenant in common against cotenants
105.618Â Â Â Â Adverse
possession of railroad property
105.620Â Â Â Â Acquiring
title by adverse possession
UNIFORM DISCLAIMER OF PROPERTY INTERESTS
105.623Â Â Â Â Short
title
105.624Â Â Â Â Definitions
for ORS 105.623 to 105.649
105.626Â Â Â Â Scope
105.628Â Â Â Â Effect
on other law
105.629Â Â Â Â Power
to disclaim; general requirements; when irrevocable
105.633Â Â Â Â Disclaimer
of interest in property
105.634Â Â Â Â Disclaimer
of rights of survivorship in jointly held property
105.636Â Â Â Â Disclaimer
of interest by trustee
105.638Â Â Â Â Disclaimer
of power of appointment or other power not held in fiduciary capacity
105.639Â Â Â Â Disclaimer
by appointee, object or taker in default of exercise of power of appointment
105.641Â Â Â Â Disclaimer
of power held in fiduciary capacity
105.642Â Â Â Â Delivery
or filing
105.643Â Â Â Â When
disclaimer barred or limited
105.645Â Â Â Â Tax
qualified disclaimer
105.646Â Â Â Â Recording
of disclaimer
105.647Â Â Â Â Application
to existing relationships
105.648Â Â Â Â Effect
on recovery of money or property under ORS 411.620
105.649Â Â Â Â Uniformity
of application and construction
PUBLIC USE OF LANDS
105.672Â Â Â Â Definitions
for ORS 105.672 to 105.696
105.676Â Â Â Â Public
policy
105.682Â Â Â Â Liabilities
of owner of land used by public for recreational purposes, woodcutting or
harvest of special forest products
105.688Â Â Â Â Applicability
of immunities from liability for owner of land; restrictions
105.692Â Â Â Â No
right to continued use of land if owner of land permits use of land; no
presumption of dedication or other rights
105.696Â Â Â Â No
duty of care or liability created; exercise of care still required of person
using land
105.699Â Â Â Â Rules
applicable to state lands
105.700Â Â Â Â Prohibiting
public access to private land; notice requirements; damages
ACTION TO ESTABLISH BOUNDARY
105.705Â Â Â Â Right
to bring action; filing of judgment
105.710Â Â Â Â Pleadings
105.715Â Â Â Â Mode
of proceeding
105.718Â Â Â Â Procedure
for determining location of public land survey corner
105.720Â Â Â Â Oath
and report of commissioners
105.725Â Â Â Â Proceedings
on motion to confirm report
ACTIONS BASED ON CHANGE OF GRADE
105.755Â Â Â Â State
liability for damages resulting from change of grade of roads other than city
streets; proceedings on cause of action; limitation
105.760Â Â Â Â State
or county liability for damages resulting from change of grade of streets;
proceedings on cause of action
EXTINGUISHMENT OF FUTURE INTERESTS
105.770Â Â Â Â Failure
of contingency; application of extinguishment
105.772Â Â Â Â Preservation
of future interests; filing of notice of intent required; limitation
105.774Â Â Â Â Exclusions
from application of ORS 105.770 and 105.772
MISCELLANEOUS ACTIONS
105.805Â Â Â Â Action
for waste
105.810Â Â Â Â Treble
damages for injury to or removal of produce, trees or shrubs; costs and
attorney fees; limitation on liability of contract logger
105.815Â Â Â Â When
double damages are awarded for trespass; exception
105.820Â Â Â Â Remedy
of tenants in common
105.825Â Â Â Â Action
for injury to inheritance
105.831Â Â Â Â Damages
for injury to mining claim
ACTION FOR REDUCED COMMERCIAL PROPERTY VALUE RESULTING FROM STREET USE
RESTRICTION
105.850Â Â Â Â Commercial
property defined
105.855Â Â Â Â Requirement
to compensate commercial property owners for reduced value of property caused
by street use restriction; effect of other access to property
105.860Â Â Â Â Cause
of action against city for compensation; appeal procedure; intervention
105.865Â Â Â Â Apportioning
compensation among property owners; termination of city liability
105.870Â Â Â Â Limitation
on commencement of action
SOLAR ENERGY EASEMENTS
105.880Â Â Â Â Conveyance
prohibiting use of solar energy systems void
105.885Â Â Â Â Definitions
for ORS 105.885 to 105.895
105.890Â Â Â Â Solar
energy easement appurtenant; termination
105.895Â Â Â Â Requirements
for easement creation by instrument; recordation
WIND ENERGY EASEMENTS
105.900    “Wind
energy easement” defined
105.905Â Â Â Â Wind
energy easement appurtenant; termination
105.910Â Â Â Â Requirements
for easement creation by instrument; recordation
105.915Â Â Â Â Instrument
creating lease or lease option of real property for wind energy conversion
system may be recorded; requirements
PERSONAL PROPERTY RIGHTS
105.920Â Â Â Â Joint
tenancy in personal property; creation
MOTOR VEHICLE EVENT DATA RECORDERS
105.925Â Â Â Â Definitions
for ORS 105.925 to 105.945
105.928Â Â Â Â Ownership
of recorded data
105.932Â Â Â Â Effect
of vehicle ownership transfer on ownership of data; prohibited insurer and
lessor actions
105.935Â Â Â Â Court
order for retrieval or use of data by law enforcement officers or certain
emergency service providers
105.938Â Â Â Â Court
order for retrieval or use of data by insurer
105.942Â Â Â Â Retrieval
or use of data for responding to medical emergency, for medical research or for
vehicle servicing or repair
105.945Â Â Â Â Exempted
data
RULE AGAINST PERPETUITIES
105.950Â Â Â Â Statutory
rule against perpetuities
105.955Â Â Â Â When
nonvested property interest or power of appointment created
105.960Â Â Â Â Reformation
105.965Â Â Â Â Exclusions
from statutory rule against perpetuities
105.970Â Â Â Â Prospective
application
105.975Â Â Â Â 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 plaintiffÂ’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 plaintiffÂ’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 plaintiffÂ’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.
________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________
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 sheriffÂ’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.
________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________
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 landlordÂ’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 BarÂ’s Lawyer Referral Service at
503-684-3763 or toll-free in
___________________________
Signature of
Plaintiff (landlord or agent)
PlaintiffÂ’s
address:
_____________________
_____________________
PlaintiffÂ’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 monthÂ’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.
________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________
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.
________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________
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:_________Â Â Â Â Â Â Â Â Zip: ______
Telephone: _________
     vs.
DEFENDANT
(Tenants/Occupants):
__________________
__________________
MAILING
ADDRESS: ___________
City: ______________
State:_________Â Â Â Â Â Â Â Â 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 defendantÂ’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 perpetratorÂ’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
sheriffÂ’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 sheriffÂ’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 plaintiffÂ’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 plaintiffÂ’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.
________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________
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
defendantÂ’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
plaintiffÂ’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 plaintiffÂ’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 plaintiffÂ’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 plaintiffÂ’s affidavit or declaration of noncompliance; ex parte
review of hearing request; delaying execution upon judgment of restitution. (1)(a) To contest a plaintiffÂ’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 defendantÂ’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 defendantÂ’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 plaintiffÂ’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
_________
DefendantÂ’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 landlordÂ’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 landlordÂ’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
defendantÂ’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 defendantÂ’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 defendantÂ’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 courtÂ’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 plaintiffÂ’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 landlordÂ’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 _____Â Â Â Â Â Â Â Â )
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
plaintiffÂ’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 tenantÂ’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 defendantÂ’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 defendantÂ’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
anotherÂ’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
holderÂ’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,
peopleÂ’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 partyÂ’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 ownerÂ’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 refereesÂ’ 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 clerkÂ’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 tenantÂ’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 clerkÂ’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
ClerkÂ’s treatment of securities and investments. The clerk in whose name a security is taken
or by whom an investment is made, and the clerkÂ’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 stateÂ’s economic and social viability and otherwise
detrimentally impact the publicÂ’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 purchaserÂ’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 cityÂ’s or countyÂ’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]
SELLERÂ’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 sellerÂ’s property disclosure statement. A sellerÂ’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
sellerÂ’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 sellerÂ’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 SellerÂ’s claim
Date ________
______________________________________________________________________________
(IF YOU DID NOT
CLAIM AN EXCLUSION IN SECTION 1, YOU MUST FILL OUT THIS SECTION.)
Section 2. SELLERÂ’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 SELLERÂ’S
ACTUAL KNOWLEDGE OF THE PROPERTY AT THE TIME OF DISCLOSURE. BUYER HAS FIVE DAYS
FROM THE SELLERÂ’S DELIVERY OF THIS SELLERÂ’S DISCLOSURE STATEMENT TO REVOKE
BUYERÂ’S OFFER BY DELIVERING BUYERÂ’S SEPARATE SIGNED WRITTEN STATEMENT OF
REVOCATION TO THE SELLER DISAPPROVING THE SELLERÂ’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 BUYERÂ’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. SELLERÂ’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?                                 [ ]Yes [ ]No   [ ]Unknown
            If yes, what product? _______________
     (1)   Are there problems with the product?                     [ ]Yes [
]No   [ ]Unknown
     (2)   Is the product covered by a warranty?                    [ ]Yes [
]No   [ ]Unknown
     (3)   Has the product been inspected?                             [
]Yes [ ]No   [ ]Unknown
     (4)   Have claims been filed for this product
             by you or by previous
owners?                               [
]Yes [ ]No   [ ]Unknown
            If yes, when? _______________
     (5)   Was money received?                                              [
]Yes [ ]No   [ ]Unknown
     (6)   Were any of the materials or products repaired
            or replaced?                                                              [
]Yes [ ]No   [ ]Unknown
     7.    COMMON INTEREST
     A.   Is there a Home Owners’ Association
            or other governing entity?                                        [
]Yes [ ]No   [ ]Unknown
            Name of Association or Other Governing
            Entity _______________
            Contact Person __________________
            Address ______________________
            Phone Number __________________
     B.   Regular periodic assessments: $_____
            per [ ]Month [ ]Year[ ]Other _____
     *C. Are there any pending or proposed special
            assessments?                                                            [
]Yes [ ]No   [ ]Unknown
     D.   Are there shared “common areas" or joint
            maintenance agreements for facilities like
            walls, fences, pools, tennis courts, walkways
            or other areas co-owned in undivided interest
            with others?                                                             [
]Yes [ ]No   [ ]Unknown
     E.    Is the Home Owners’ Association or other
            governing entity a party to pending litigation
            or subject to an unsatisfied judgment?                    [ ]Yes [
]No   [ ]Unknown [ ]NA
     F.    Is the property in violation of recorded
            covenants, conditions and restrictions or in
            violation of other bylaws or governing rules,
            whether recorded or not?                                         [
]Yes [ ]No   [ ]Unknown    [ ]NA
     8.    GENERAL
     A.   Are there problems with settling, soil,
            standing water or drainage on the property
            or in the immediate area?                                         [
]Yes [ ]No   [ ]Unknown
     B.   Does the property contain fill?                                [
]Yes [ ]No   [ ]Unknown
     C.   Is there any material damage to the property or
            any of the structure(s) from fire, wind, floods,
            beach movements, earthquake, expansive soils
            or landslides?                                                           [
]Yes [ ]No   [ ]Unknown
     D.   Is the property in a designated floodplain?             [ ]Yes [ ]No   [ ]Unknown
     E.    Is the property in a designated slide or other
            geologic hazard zone?                                              [
]Yes [ ]No   [ ]Unknown
     *F.  Has any portion of the property been tested
            or treated for asbestos, formaldehyde, radon
            gas, lead-based paint, mold, fuel or chemical
            storage tanks or contaminated soil or water?           [ ]Yes [ ]No   [ ]Unknown
     G.   Are there any tanks or underground storage
            tanks (e.g., septic, chemical, fuel, etc.)
            on the property?                                                       [
]Yes [ ]No   [ ]Unknown
     H.   Has the property ever been used as an illegal
            drug manufacturing or distribution site?                 [ ]Yes [ ]No   [ ]Unknown
            *If yes, was a Certificate of Fitness issued?           [ ]Yes [ ]No   [ ]Unknown
     *
            forestland-urban interface?                                      [
]Yes [ ]No   [ ]Unknown
     9.    FULL DISCLOSURE BY SELLERS
     *A. Are there any other material defects
            affecting this property or its value
            that a prospective buyer should
            know about?                                                            [
]Yes [ ]No
            *If yes, describe the defect on attached sheet
            and explain the frequency and extent of the
            problem and any insurance claims, repairs or
            remediation.
     B.   Verification:
     The foregoing answers and attached
explanations (if any) are complete and correct to the best of my/our knowledge
and I/we have received a copy of this disclosure statement. I/we authorize
my/our agents to deliver a copy of this disclosure statement to all prospective
buyers of the property or their agents.
     Seller(s) signature:
     SELLER ______________________ DATE _______________
     SELLER ______________________ DATE _______________
______________________________________________________________________________
II. BUYERÂ’S
ACKNOWLEDGMENT
A. As buyer(s),
I/we acknowledge the duty to pay diligent attention to any material defects
that are known to me/us or can be known by me/us by utilizing diligent
attention and observation.
B. Each buyer
acknowledges and understands that the disclosures set forth in this statement
and in any amendments to this statement are made only 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 of any real estate licensee engaged by the seller or buyer.
A financial institution or real estate licensee is not bound by and has no
liability with respect to any representation, misrepresentation, omission,
error or inaccuracy contained in another partyÂ’s disclosure statement required
by this section or any amendment to the disclosure statement.
C. Buyer (which
term includes all persons signing the “buyer’s acknowledgment” portion of this
disclosure statement below) hereby acknowledges receipt of a copy of this
disclosure statement (including attachments, if any) bearing sellerÂ’s
signature(s).
DISCLOSURES, IF
ANY, CONTAINED IN THIS FORM ARE PROVIDED BY THE SELLER ON THE BASIS OF SELLERÂ’S
ACTUAL KNOWLEDGE OF THE PROPERTY AT THE TIME OF DISCLOSURE. IF THE SELLER HAS
FILLED OUT SECTION 2 OF THIS FORM, YOU, THE BUYER, HAVE FIVE DAYS FROM THE
SELLERÂ’S DELIVERY OF THIS DISCLOSURE STATEMENT TO REVOKE YOUR OFFER BY
DELIVERING YOUR SEPARATE SIGNED WRITTEN STATEMENT OF REVOCATION TO THE SELLER
DISAPPROVING THE SELLERÂ’S DISCLOSURE UNLESS YOU WAIVE THIS RIGHT AT OR PRIOR TO
ENTERING INTO A SALE AGREEMENT.
BUYER HEREBY
ACKNOWLEDGES RECEIPT OF A COPY OF THIS SELLERÂ’S PROPERTY DISCLOSURE STATEMENT.
BUYER ______________________
DATE _______________
BUYER ______________________
DATE _______________
Agent receiving
disclosure statement on buyerÂ’s behalf to sign and date:
______________________Real
Estate Licensee
______________________Real
Estate Firm
Date received by
agent ________
______________________________________________________________________________
[2003 c.328 §3;
2007 c.30 §13; 2007 c.866 §8]
     105.465
Application of ORS 105.462 to 105.490, 696.301 and 696.870; disclosure
statement. (1) The
provisions of ORS 105.462 to 105.490, 696.301 and 696.870:
     (a) Apply to the real property described
in subparagraphs (A) to (D) of this paragraph unless the buyer indicates to the
seller, which indication shall be conclusive, that the buyer will use the real
property for purposes other than a residence for the buyer or the buyerÂ’s
spouse, parent or child:
     (A) Real property consisting of or
improved by one to four dwelling units;
     (B) A condominium unit as defined in ORS
100.005 and not subject to disclosure under ORS 100.705;
     (C) A timeshare property as defined in ORS
94.803 and not subject to disclosure under ORS 94.829; and
     (D) A manufactured dwelling, as defined in
ORS 446.003, that is owned by the same person who owns the land upon which the
manufactured dwelling is situated.
     (b) Do not apply to a leasehold in real
property.
     (2) Except as provided in ORS 105.475 (4),
a seller shall complete, sign and deliver a sellerÂ’s property disclosure
statement as set forth in ORS 105.464 to each buyer who makes a written offer
to purchase real property in this state. [1993 c.547 §1; 1997 c.816 §15; 1999
c.307 §24; 1999 c.677 §65; 2001 c.300 §74; 2003 c.328 §1]
     105.470
Exclusions from ORS 105.462 to 105.490, 696.301 and 696.870. ORS 105.462 to 105.490, 696.301 and 696.870
do not apply to:
     (1) The first sale of a dwelling never
occupied, provided that the seller provides the buyer with the following
statement on or before the date the buyer is legally obligated to purchase the
subject real property: “THIS HOME WAS CONSTRUCTED OR INSTALLED UNDER BUILDING
OR INSTALLATION PERMIT(S) #___, ISSUED BY_____.”
     (2) Sales by financial institutions that
acquired the property as custodian, agent or trustee, or by foreclosure or deed
in lieu of foreclosure.
     (3) The following sellers, if appointed by
a court:
     (a) Receivers;
     (b) Personal representatives;
     (c) Trustees;
     (d) Conservators; or
     (e) Guardians.
     (4) Sales or transfers by governmental
agencies. [1993 c.547 §7; 1995 c.198 §1; 2003 c.328 §5]
     105.475
BuyerÂ’s statement of revocation of offer; criteria. (1) If a seller issues a sellerÂ’s property
disclosure statement and a buyer has not then delivered to the seller a written
statement waiving the buyerÂ’s right to revoke the buyerÂ’s offer, the buyer
shall have five business days after delivery of the sellerÂ’s property
disclosure statement to revoke the buyerÂ’s offer by delivering to the seller a
separate signed written statement of revocation disapproving the sellerÂ’s disclosure.
     (2) If a buyer fails to timely deliver to
a seller a written statement revoking the buyerÂ’s offer, the buyerÂ’s right to
revoke the buyerÂ’s offer expires.
     (3) If a buyer closes the transaction, the
buyerÂ’s right to revoke based on ORS 105.462 to 105.490, 696.301 and 696.870 is
terminated.
     (4) If the seller fails or refuses to
provide a sellerÂ’s property disclosure statement as required under this
section, the buyer shall have a right of revocation until the right is
terminated pursuant to subsection (3) of this section.
     (5) If the buyer revokes the offer
pursuant to this section, notwithstanding ORS 696.581, the buyer is entitled to
immediate return of all deposits and other considerations delivered to any
party or escrow agent with respect to the buyerÂ’s offer, and the buyerÂ’s offer
is void.
     (6) When the deposits and other
considerations have been returned to the buyer, upon the buyerÂ’s signed,
written release and indemnification of the holders of the deposits and other
considerations, the holders are released from all liability for the deposits
and other considerations.
     (7) Any seller’s property disclosure
statement issued by the seller is part of and incorporated into the offer and
the acceptance. [1993 c.547 §§2,3; 2003 c.328 §6]
     105.480
Representations in disclosure statement; application. (1) The representations contained in a
sellerÂ’s property disclosure statement and in any amendment to the disclosure
statement are the representations of the seller only. The representations of
the seller are not representations of:
     (a) A financial institution that may have
made or that may make a loan pertaining to the property covered by a sellerÂ’s
property disclosure statement, or that may have or take a security interest in
the property covered by a sellerÂ’s property disclosure statement.
     (b) A real estate licensee engaged by the
seller or buyer.
     (2) Neither a financial institution nor a
real estate licensee is bound by or has any liability with respect to any
representation, misrepresentation, omission, error or inaccuracy contained in
the sellerÂ’s property disclosure statement required by ORS 105.465 or any
amendment to the disclosure statement. [1993 c.547 §4b; 1997 c.631 §400; 2001
c.300 §69; 2003 c.328 §7]
     105.485
Allocation of burden of proof.
The burden of proof of lawful delivery of a sellerÂ’s property disclosure
statement and any amendment thereto is on the seller. The burden of proof of
lawful delivery of a notice of revocation of a buyerÂ’s offer is on the buyer. [1993
c.547 §5; 2003 c.328 §8]
     105.490
Effect of ORS 105.462 to 105.490, 696.301 and 696.870 on rights and remedies. ORS 105.462 to 105.490, 696.301 and 696.870
do not directly, indirectly or by implication limit or alter any preexisting
common law or statutory right or remedy including actions for fraud, negligence
or equitable relief. [1993 c.547 §8; 2003 c.328 §9]
ACTIONS AND SUITS
FOR NUISANCES
     105.505
Remedies available for private nuisance. Any person whose property or personal enjoyment thereof is affected by
a private nuisance, may maintain an action for damages therefor. If judgment is
given for the plaintiff in the action, the plaintiff may, on motion, in
addition to the execution to enforce the judgment, obtain an order allowing a
warrant to issue to the sheriff to abate the nuisance. The motion must be made
at the term at which judgment is given, and shall be allowed of course, unless
it appears on the hearing that the nuisance has ceased or that such remedy is
inadequate to abate or prevent the continuance of the nuisance, in which latter
case the plaintiff may proceed to have the defendant enjoined. [Amended by 1979
c.284 §96]
     105.510
Procedure for abating a nuisance. If the order to abate provided for in ORS 105.505 is made, the clerk
shall when requested by the plaintiff within six months after the order is
made, issue a warrant directed to the sheriff, requiring the sheriff forthwith
to abate the nuisance at the expense of the defendant and to return the warrant
as soon thereafter as possible, with the proceedings of the sheriff indorsed
thereon. The expense of abating the nuisance may be levied by the sheriff on
the property of the defendant and in this respect the warrant is to be deemed
an execution against property.
     105.515
Stay of issuance of warrant to abate. At any time before an order to abate is made or a warrant to abate is
issued, the defendant may, on motion to the court or judge thereof, have an
order to stay the issuing of the warrant for such period as may be necessary,
not exceeding six months, to allow the defendant to abate the nuisance, upon
giving an undertaking to the plaintiff in a sufficient amount, in the form of
an irrevocable letter of credit issued by an insured institution, as defined in
ORS 706.008, or a bond with one or more sureties, to the satisfaction of the
court or judge thereof, that the defendant will abate the nuisance within the
time and in the manner specified in the order. [Amended by 1991 c.331 §27; 1997
c.631 §401]
     105.520
Justification of sureties; proceedings when nuisance is not abated. If the plaintiff is not notified of the time
and place of the application for the order provided for in ORS 105.515, the
sureties therein provided for shall justify as bail upon arrest, otherwise the
justification may be omitted unless the plaintiff requires it. If the order is
made and undertaking given, and the defendant fails to abate the nuisance
within the time specified in the order, at any time within six months
thereafter, the warrant for the abatement of the nuisance may issue as if the
warrant had not been stayed.
     105.525 [Repealed by 1969 c.509 §8]
     105.530 [Repealed by 1969 c.509 §8]
ABATEMENT OF
NUISANCE ACTIVITIES OR CONDITIONS
     105.550
Definitions for ORS 105.550 to 105.600. As used in ORS 105.550 to 105.600, unless the context requires
otherwise:
     (1) “Of record” means:
     (a) With regard to real property, that an
ownerÂ’s interest is recorded in the public records provided for by Oregon
statutes where the ownerÂ’s interest must be recorded to perfect a lien or
security interest or provide constructive notice of the ownerÂ’s interest; or
     (b) With regard to personal property, that
an ownerÂ’s interest is recorded in the public records under any applicable
state or federal law where the ownerÂ’s interest must be recorded to perfect a
lien or security interest, or provide constructive notice of the ownerÂ’s
interest.
     (2) “Owner” means a person having any
legal or equitable interest in property, including, but not limited to, a
purchaser, lienholder or holder of any security interest in such property.
     (3) “Place” or “property” includes, but is
not limited to, any premises, room, house, building or structure or any
separate part or portion thereof whether permanent or not or the ground itself
or any conveyance or any part or portion thereof. [1989 c.846 §2; 1999 c.168 §6]
     105.555
Places declared nuisances subject to abatement. (1) The following are declared to be
nuisances and shall be enjoined and abated as provided in ORS 105.550 to
105.600:
     (a) Any place that, as a regular course of
business, is used for the purpose of prostitution and any place where acts of
prostitution occur;
     (b) Any place that is used and maintained
for profit and for the purpose of gambling or a lottery, as defined in ORS
167.117, by any person, partnership or corporation organized for profit and
wherein take place any of the acts or wherein are kept, stored or located any
of the games, devices or things that are forbidden by or made punishable by ORS
167.108 to 167.164;
     (c) Any place that has been determined to
be not fit for use under ORS 453.876 and that has not been decontaminated and
certified as fit for use under ORS 453.885 within 180 days after the
determination under ORS 453.876; and
     (d) Any place where activity involving the
unauthorized delivery, manufacture or possession of a controlled substance, as
defined in ORS 475.005, occurs or any place wherein are kept, stored or located
any of the devices, equipment, things or substances used for unauthorized
delivery, manufacture or possession of a controlled substance. As used in this
paragraph, “devices, equipment, things” does not include hypodermic syringes or
needles. This paragraph does not apply to acts that constitute violations under
ORS 475.860 or 475.864.
     (2) Nothing in ORS 105.550 to 105.600,
166.715 and 167.158 applies to property to the extent that the devices,
equipment, things or substances that are used for delivery, manufacture or
possession of a controlled substance are kept, stored or located in or on the
property for the purpose of lawful sale or use of these items. [1989 c.846 §3;
1989 c.915 §24; 1999 c.168 §7; 2005 c.706 §1; 2005 c.708 §43]
     105.560
Action to restrain or enjoin nuisance; jurisdiction; remedies. (1) An action to restrain or enjoin a
nuisance described in ORS 105.555 may be brought by the Attorney General,
district attorney, county attorney, city attorney or a person residing or doing
business in the county where the property is located. The action shall be
brought in the circuit court in the county where the property is located.
Except as provided in subsection (5) of this section, the action may be
commenced in the small claims department of the circuit court for the county
where the property is located.
     (2) In addition to any other remedy that
may be available under ORS 105.550 to 105.600, a plaintiff in an action brought
to restrain or enjoin a nuisance described in ORS 105.555 may seek damages for
mental suffering, emotional distress, inconvenience and interference with the
use of property suffered by the plaintiff by reason of the activities
constituting a nuisance.
     (3) The court may award reasonable
attorney fees to the prevailing party in an action under ORS 105.550 to 105.600
unless the action is commenced and tried in the small claims department of
circuit court. Attorney fees may not be awarded to any party in an action under
ORS 105.550 to 105.600 that is commenced and tried in the small claims
department of circuit court.
     (4) The court may consolidate all actions
that relate to the same property and that are brought to restrain or enjoin a
nuisance described in ORS 105.555. Consolidation in the small claims department
of a circuit court shall be for purposes of trial only. A separate judgment
shall be entered for each action in the small claims department of circuit
court.
     (5) An action may not be brought in the
small claims department of a circuit court to restrain or enjoin a nuisance
described in ORS 105.555 if the property alleged to be a nuisance is licensed
under ORS chapter 471 or 472. [1989 c.846 §4; 1999 c.168 §1]
     Note: The provisions of ORS chapter 472 were
repealed by sections 12 and 41, chapter 351, Oregon Laws 1999. The text of
105.560 was not amended by enactment of the Legislative Assembly to reflect the
repeal. Editorial adjustment of 105.560 for the repeal of ORS chapter 472 has
not been made.
     105.565
Complaint; service; jury trial; admissibility of reputation as evidence. (1) Any action shall be commenced by the
filing of a complaint alleging facts constituting the nuisance, and containing
a legal description of the property involved and an allegation that the owners
of record of the property have been notified of the facts giving rise to the
alleged nuisance at least 10 days prior to the filing of the action with the
court. The complaint must specify whether the plaintiff will seek the remedy
provided in ORS 105.580 (2).
     (2) The complaint shall be served on
owners of record as provided in ORCP 7. No service need be made prior to an
application for a temporary restraining order, provided the procedures of ORCP
79 B are followed with regard to all persons entitled to service under this
section.
     (3) Except in those cases tried in the
small claims department of a circuit court, any party may demand a trial by
jury in any action brought under ORS 105.550 to 105.600.
     (4) On the issue of whether property is
used in violation of ORS 105.555, evidence of its general reputation and the
reputation of persons residing in or frequenting it shall be admissible. [1989
c.846 §5; 1999 c.168 §2]
     105.570 [Formerly 465.140; repealed by 1999 c.168 §12]
     105.575
Precedence of action on court docket. An action under ORS 105.550 to 105.600 shall have precedence over all
other actions, except prior matters of the same character, criminal proceedings
and election contests. [1989 c.846 §6; 1999 c.168 §8]
     105.580
Order of abatement; cancellation. (1) Except as provided in subsection (3) of this section, if the
existence of the nuisance is established in the action, an order of abatement
shall be entered as part of the general judgment in the case.
     (2) The order of abatement may direct the
effectual closing of the premises, building or place against its use for any
purpose, and so keeping it closed for a period of one year, unless sooner
released. The court shall not include provisions for the closing of the
premises under the provisions of this subsection unless that relief is
specifically requested in the complaint.
     (3) The court, if satisfied of an owner’s
good faith, shall enter no order of abatement as to that owner if the court
finds that the owner:
     (a) Had no knowledge of the existence of
the nuisance or has been making reasonable efforts to abate the nuisance;
     (b) Has not been guilty of any contempt of
court in the proceedings; and
     (c) Will make best efforts to immediately
abate any nuisance that may exist and prevent it from being a nuisance for a
period of one year thereafter.
     (4) Except for an order of abatement
entered based on the manufacture of a controlled substance, if an order of
abatement has been entered and an owner subsequently meets the requirements of
this section, the order of abatement shall be canceled as to that owner.
     (5) If the court enters an order under
this section on the basis that the property was used for the manufacture of a
controlled substance, the court shall send a copy of the order to the Director
of Human Services. The director or the directorÂ’s designee shall declare the
property to be an illegal drug manufacturing site for purposes of ORS 453.855
to 453.912. An order of the court under this section shall not be canceled
until the director or the directorÂ’s designee determines the property to be fit
for use. Upon determining the property to be fit for use, the director or
designee shall notify the court, which shall cancel the abatement order. [1989
c.846 §7; 1997 c.769 §1; 1999 c.168 §3; 2003 c.576 §238]
     105.585
Costs of securing or decontaminating property as lien; priority of lien; filing
notice of pendency. (1) Any
costs associated with securing the property under ORS 105.550 to 105.600 shall
constitute a lien against the property declared to be a nuisance from the time
a notice specifying the costs is filed of record.
     (2) Any costs incurred by the county or
local government to secure a property that is a nuisance described in ORS
105.555 (1)(c) and have the property decontaminated and certified as fit for
use under ORS 453.885 shall constitute a lien against the property declared to
be a nuisance from the time a notice specifying the costs is filed of record.
Notwithstanding subsection (3) of this section, the priority of a lien created
under this subsection is governed by ORS 453.886 (4).
     (3) A lien created by ORS 105.550 to
105.600 is prior and superior to all other liens, mortgages and encumbrances
against the property upon which the lien is imposed that attached to the
property after any lien imposed by ORS 105.550 to 105.600.
     (4) A notice of pendency of an action may
be filed pursuant to ORS 93.740 with respect to any action filed under ORS
105.550 to 105.600. [1989 c.846 §8; 1999 c.168 §4; 2007 c.673 §2]
     105.590
Intentional violation of order punishable as contempt; fine; imprisonment. An intentional violation of a restraining
order, preliminary injunction or order of abatement under ORS 105.550 to
105.600 is punishable as a contempt of court by a fine of not more than $1,000
which may not be waived, or by imprisonment for not more than six months or by
both. [1989 c.846 §9; 1999 c.168 §9]
     105.595
Action to abate nuisance not to affect other remedies; exception. Except to the extent that a judgment has
been entered in the action for damages under ORS 105.560 (2), the abatement of
a nuisance under ORS 105.550 to 105.600 does not prejudice the right of any
person to recover damages for its past existence. [1989 c.846 §10; 1999 c.168 §5]
     105.600
ORS 105.550 to 105.600 not to limit authority of cities or counties to further
restrict activities. The
provisions of ORS 105.550 to 105.600, 166.715 and 167.158 shall not be
construed to limit the powers of cities and counties to adopt ordinances and
regulations that further restrict the activities declared by ORS 105.555 to be
nuisances provided that no such ordinance or regulation shall affect real or
personal property unless it is consistent with the provisions of ORS 105.550 to
105.600, 166.715 and 167.158. [1989 c.846 §11]
SUITS TO QUIET
TITLE AND REMOVE CLOUD
     105.605
Suits to determine adverse claims. Any person claiming an interest or estate in real property not in the
actual possession of another may maintain a suit in equity against another who
claims an adverse interest or estate therein for the purpose of determining
such conflicting or adverse claims, interests or estates. Any municipal
corporation or county of this state claiming any interest or estate in real
property which is not in the actual possession of another, including real
property acquired by foreclosure of delinquent tax liens situated in the same
county, may maintain a suit in equity against all persons who claim an adverse
interest or estate in all or any part of the property for the purpose of
determining the conflicting or adverse claims, interests or estates. One or
more parcels may be included in one suit and the issue made by the pleadings in
any suit by a municipality or county relating only to a certain parcel or part
of the real property, shall be separately tried and determined upon motion of
any interested party.
     105.610
Suit to cancel patent of donee under Donation Law. Whenever any person claims real property as
a donee of the United States by virtue of a settlement thereon under the Act of
Congress approved September 27, 1850, commonly called the Donation Law, or the
Acts amendatory thereto, and the patent for such property, or any portion
thereof, was wrongfully issued to another, the person may maintain a suit in
equity against the person to whom the patent was issued, or those claiming
under the person, for the purpose of having the patent canceled, and the estate
or interest of the plaintiff in the property ascertained and established. In
such suit, the party entitled to and making the settlement under such Acts of
Congress, and complying with the subsequent conditions thereby required, is
deemed to have a legal estate in fee in the property although the patent
therefor was issued to another.
     105.615
Action by tenant in common against cotenants. Unless otherwise agreed or provided in a granting document, a tenant
in common of real property may acquire fee simple title to the real property by
adverse possession as against all other cotenants if the tenant in common or
the tenant in commonÂ’s predecessor in interest has been in possession of the
real property, exclusive of all other cotenants, for an uninterrupted period of
20 years or more and has paid all taxes assessed against such property while in
possession. Notice of the exclusive possession need not be given to the other
cotenants by the cotenant in possession. [1969 c.350 §1; 1989 c.1069 §3]
     105.618
Adverse possession of railroad property. A person may not acquire by adverse possession, as defined in ORS
105.620, property owned by a railroad or used for a railroad operation. [2007
c.440 §1]
     105.620
Acquiring title by adverse possession. (1) A person may acquire fee simple title to real property by adverse
possession only if:
     (a) The person and the predecessors in
interest of the person have maintained actual, open, notorious, exclusive,
hostile and continuous possession of the property for a period of 10 years;
     (b) At the time the person claiming by
adverse possession or the personÂ’s predecessors in interest, first entered into
possession of the property, the person entering into possession had the honest
belief that the person was the actual owner of the property and that belief:
     (A) By the person and the person’s predecessor
in interest, continued throughout the vesting period;
     (B) Had an objective basis; and
     (C) Was reasonable under the particular
circumstances; and
     (c) The person proves each of the elements
set out in this section by clear and convincing evidence.
     (2)(a) A person maintains “hostile
possession” of property if the possession is under claim of right or with color
of title. “Color of title” means the adverse possessor claims under a written
conveyance of the property or by operation of law from one claiming under a
written conveyance.
     (b) Absent additional supporting facts,
the grazing of livestock is insufficient to satisfy the requirements of
subsection (1)(a) of this section.
     (3) As used in this section and ORS
105.005 and 105.615, “person” includes, but is not limited to, the state and
its political subdivisions as created by statute. [1989 c.1069 §1; 1991 c.109 §2;
1999 c.950 §1]
UNIFORM DISCLAIMER
OF PROPERTY INTERESTS
     105.623
Short title. ORS 105.623 to
105.649 may be cited as the Uniform Disclaimer of Property Interests Act. [2001
c.245 §1]
     105.624
Definitions for ORS 105.623 to 105.649. As used in ORS 105.623 to 105.649:
     (1) “Disclaimant” means the person to whom
a disclaimed interest or power would have passed had the disclaimer not been
made.
     (2) “Disclaimed interest” means the
interest that would have passed to the disclaimant had the disclaimer not been
made.
     (3) “Disclaimer” means the refusal to
accept an interest in property or a power over property.
     (4) “Fiduciary” means a personal
representative, trustee, agent acting under a power of attorney or other person
authorized to act as a fiduciary with respect to the property of another
person.
     (5) “Jointly held property” means property
held in the name of two or more persons under an arrangement pursuant to which:
     (a) All holders have concurrent interests;
and
     (b) The last surviving holder is entitled
to the whole of the property.
     (6) “Person” means an individual,
corporation, business trust, estate, trust, partnership, limited liability
company, association, joint venture, government, governmental subdivision,
agency, public corporation or any other legal or commercial entity.
     (7) “State” means a state of the
     (8) “Trust” means:
     (a) A charitable or noncharitable express
trust, including any additions made to the trust, whenever and however created;
and
     (b) A trust created pursuant to a statute
or judgment that requires the trust to be administered in the same manner as an
express trust. [2001 c.245 §2; 2003 c.576 §369]
     105.625 [1975 c.622 §8; repealed by 2001 c.245 §19]
     105.626
Scope. ORS 105.623 to
105.649 apply to disclaimers of any interest in or power over property without
regard to when the interest or power that is disclaimed was created. [2001
c.245 §3]
     105.627 [1975 c.622 §1; 1981 c.56 §1; repealed by
2001 c.245 §19]
     105.628
Effect on other law. (1)
Unless displaced by a provision of ORS 105.623 to 105.649, the principles of
law and equity supplement ORS 105.623 to 105.649.
     (2) ORS 105.623 to 105.649 do not limit
any right of a person to waive, release, disclaim or renounce an interest in
property, or power over property, under a law other than ORS 105.623 to
105.649. [2001 c.245 §4]
     105.629
Power to disclaim; general requirements; when irrevocable. (1) A person may disclaim, in whole or part,
any interest in property or any power over property, including a power of
appointment. A person may disclaim the interest or power even if the person who
created the interest or power imposed a spendthrift provision or similar
restriction on transfer or imposed a restriction or limitation on the right to
disclaim.
     (2) Except to the extent that a fiduciary’s
right to disclaim is expressly restricted or limited by another statute of this
state or by the instrument creating the fiduciary relationship, a fiduciary may
disclaim, in whole or part, any interest in property or power over property,
including a power of appointment, without regard to whether the fiduciary is acting
in a personal or representative capacity. A fiduciary may disclaim the interest
or power even if the creator of the interest or power imposed a spendthrift
provision or similar restriction on transfer or a restriction or limitation on
the right to disclaim, or an instrument other than the instrument that created
the fiduciary relationship imposed a restriction or limitation on the right to
disclaim.
     (3) To be effective, a disclaimer must:
     (a) Be in writing or otherwise recorded by
inscription on a tangible medium or by storage in an electronic or other medium
in a manner that allows the disclaimer to be retrieved in perceivable form;
     (b) Declare that the person disclaims the
interest in the property or in the power;
     (c) Describe the interest in property or
power over property that is disclaimed;
     (d) Be signed by the person making the
disclaimer; and
     (e) Be delivered or filed in the manner
provided in ORS 105.642.
     (4) A partial disclaimer may be expressed
as a fraction, percentage, monetary amount, term of years, limitation of a
power or as any other interest or estate in the property.
     (5) A disclaimer is irrevocable when the
disclaimer is delivered or filed pursuant to ORS 105.642 or when the disclaimer
becomes effective as provided in ORS 105.633 to 105.641, whichever occurs
later.
     (6) A disclaimer made under ORS 105.623 to
105.649 is not a transfer, assignment or release. [2001 c.245 §5]
     105.630 [1975 c.622 §2; 1981 c.56 §2; 1983 c.740 §10;
1997 c.813 §1; repealed by 2001 c.245 §19]
     105.632 [1975 c.622 §3; 1981 c.56 §3; 1997 c.813 §2;
repealed by 2001 c.245 §19]
     105.633
Disclaimer of interest in property. (1) For the purposes of this section:
     (a) “Time of distribution” means the time
when a disclaimed interest would have taken effect through possession or
enjoyment.
     (b) “Future interest” means an interest
that takes effect through possession or enjoyment, if at all, at a time later
than the time that the interest is created.
     (2) Except for a disclaimer governed by
ORS 105.634 or 105.636, the following rules apply to a disclaimer of an
interest in property:
     (a) The disclaimer takes effect when the
instrument creating the interest becomes irrevocable or, if the interest arises
under the law of intestate succession, when the decedent dies.
     (b) The disclaimed interest passes
according to any provision in the instrument creating the interest providing
for the disposition of the specific interest in the event the interest is
disclaimed, or according to any provision in the instrument creating the
interest providing for the disposition of interests in general in the event the
interests created by the instrument are disclaimed.
     (c) If the instrument creating the
interest does not contain a provision described in subsection (2) of this
section, the following rules apply:
     (A) If the disclaimant is an individual,
the disclaimed interest passes as if the disclaimant had died immediately
before the time of distribution. However, if by law or under the instrument the
descendants of the disclaimant would share in the disclaimed interest by any
method of representation had the disclaimant died before the time of
distribution, the disclaimed interest passes only to the descendants of the
disclaimant who survive the time of distribution.
     (B) If the disclaimant is not an
individual, the disclaimed interest passes as if the disclaimant did not exist.
     (d) Upon the disclaimer of a preceding
interest, a future interest held by a person other than the disclaimant takes
effect as if the disclaimant had died or ceased to exist immediately before the
time of distribution, but a future interest held by the disclaimant is not
accelerated in possession or enjoyment. [2001 c.245 §6]
     105.634
Disclaimer of rights of survivorship in jointly held property. (1) Upon the death of a holder of jointly
held property, a surviving holder may disclaim, in whole or part, the greater
of:
     (a) A fractional share of the property
determined by dividing the number one by the number of joint holders alive
immediately before the death of the holder to whose death the disclaimer
relates; or
     (b) All of the property except that part
of the value of the entire interest attributable to the contribution furnished
by the disclaimant.
     (2) A disclaimer under subsection (1) of
this section takes effect upon the death of the holder of jointly held property
to whose death the disclaimer relates.
     (3) An interest in jointly held property
disclaimed by a surviving holder of the property passes as if the disclaimant
predeceased the holder to whose death the disclaimer relates. [2001 c.245 §7]
     105.635 [1975 c.622 §4; 1981 c.56 §4; repealed by
2001 c.245 §19]
     105.636
Disclaimer of interest by trustee. If a trustee disclaims an interest in property that otherwise would
have become trust property, the interest does not become trust property. [2001
c.245 §8]
     105.637 [1975 c.622 §5; repealed by 2001 c.245 §19]
     105.638
Disclaimer of power of appointment or other power not held in fiduciary
capacity. If a holder
disclaims a power of appointment or other power not held in a fiduciary
capacity, the following rules apply:
     (1) If the holder has not exercised the
power, the disclaimer takes effect as of the time the instrument creating the
power becomes irrevocable.
     (2) If the holder has exercised the power
and the disclaimer is of a power other than a presently exercisable general
power of appointment, the disclaimer takes effect immediately after the last
exercise of the power.
     (3) The instrument creating the power is
construed as if the power expired when the disclaimer became effective. [2001
c.245 §9]
     105.639
Disclaimer by appointee, object or taker in default of exercise of power of
appointment. (1) A
disclaimer of an interest in property by an appointee of a power of appointment
takes effect as of the time the instrument by which the holder exercises the
power becomes irrevocable.
     (2) A disclaimer of an interest in
property by a person who is an object of an exercise of a power of appointment,
or by a person who is a taker in default of an exercise of a power of
appointment, takes effect as of the time the instrument creating the power
becomes irrevocable. [2001 c.245 §10]
     105.640 [1975 c.622 §7; repealed by 2001 c.245 §19]
     105.641
Disclaimer of power held in fiduciary capacity. (1) If a fiduciary disclaims a power held in
a fiduciary capacity that has not been exercised, the disclaimer takes effect
as of the time the instrument creating the power becomes irrevocable.
     (2) If a fiduciary disclaims a power held
in a fiduciary capacity that has been exercised, the disclaimer takes effect
immediately after the last exercise of the power.
     (3) A disclaimer under this section
applies to another fiduciary if the disclaimer so provides and the fiduciary
disclaiming has the authority to bind the estate, trust or other person for
whom the fiduciary is acting. [2001 c.245 §11]
     105.642
Delivery or filing. (1) As
used in this section, “beneficiary designation” means an instrument, other than
an instrument creating a trust, naming the beneficiary of:
     (a) An annuity or insurance policy;
     (b) An account with a designation for
payment on death;
     (c) A security registered in beneficiary
form;
     (d) A pension, profit-sharing, retirement
or other employment-related benefit plan; or
     (e) Any other nonprobate transfer at
death.
     (2) Subject to subsections (3) to (12) of
this section, delivery of a disclaimer may be made by personal delivery, first
class mail or any other method likely to result in receipt of the disclaimer.
     (3) If the interest to be disclaimed is
created under the law of intestate succession or an interest created by will,
other than an interest in a testamentary trust:
     (a) A disclaimer must be delivered to the
personal representative of the decedentÂ’s estate; or
     (b) If a personal representative is not serving
at the time the disclaimer is made, the disclaimer must be filed with a court
having authority to appoint the personal representative.
     (4) In the case of an interest in a
testamentary trust:
     (a) A disclaimer must be delivered to the
trustee;
     (b) If a trustee is not serving at the
time the disclaimer is made but a personal representative for the decedentÂ’s
estate is serving, the disclaimer must be delivered to the personal
representative; or
     (c) If neither a trustee nor a personal
representative is serving at the time the disclaimer is made, the disclaimer
must be filed with a court having authority to enforce the trust.
     (5) In the case of an interest in an inter
vivos trust:
     (a) A disclaimer must be delivered to the
trustee serving at the time the disclaimer is made;
     (b) If a trustee is not serving at the
time the disclaimer is made, the disclaimer must be filed with a court having
authority to enforce the trust; or
     (c) If the disclaimer is made before the
time the instrument creating the trust becomes irrevocable, the disclaimer must
be delivered to the settlor of a revocable trust or the transferor of the
interest.
     (6) In the case of an interest created by
a beneficiary designation made before the time the designation becomes
irrevocable, a disclaimer must be delivered to the person making the
beneficiary designation.
     (7) In the case of an interest created by
a beneficiary designation made after the time the designation becomes
irrevocable, a disclaimer must be delivered to the person obligated to
distribute the interest.
     (8) In the case of a disclaimer by a
surviving holder of jointly held property, the disclaimer must be delivered to
the person to whom the disclaimed interest passes.
     (9) In the case of a disclaimer by a
person who is an object of an exercise of a power of appointment or a taker in
default of an exercise of a power of appointment at any time after the power
was created:
     (a) The disclaimer must be delivered to
the holder of the power or to the fiduciary acting under the instrument that
created the power; or
     (b) If a fiduciary is not serving at the
time the disclaimer is made, the disclaimer must be filed with a court having
authority to appoint the fiduciary.
     (10) In the case of a disclaimer by an
appointee of a nonfiduciary power of appointment:
     (a) The disclaimer must be delivered to
the holder of the power, the personal representative of the holderÂ’s estate or
to the fiduciary under the instrument that created the power; or
     (b) If a fiduciary is not serving at the
time the disclaimer is made, the disclaimer must be filed with a court having
authority to appoint the fiduciary.
     (11) In the case of a disclaimer by a
fiduciary of a power over a trust or estate, the disclaimer must be delivered
as provided in subsection (3), (4) or (5) of this section as if the power
disclaimed were an interest in property.
     (12) In the case of a disclaimer of a
power by an agent, the disclaimer must be delivered to the principal or the
principal’s representative. [2001 c.245 §12]
     105.643
When disclaimer barred or limited. (1) A disclaimer is barred by a written waiver of the right to
disclaim.
     (2) A disclaimer of an interest in
property is barred if any of the following events occurs before the disclaimer
becomes effective:
     (a) The disclaimant accepts the interest
sought to be disclaimed;
     (b) The disclaimant voluntarily assigns,
conveys, encumbers, pledges or transfers the interest sought to be disclaimed
or contracts to do so; or
     (c) The interest sought to be disclaimed
is sold pursuant to a judicial sale.
     (3) A disclaimer, in whole or part, of the
future exercise of a power held in a fiduciary capacity is not barred by the
previous exercise of the power.
     (4) A disclaimer, in whole or part, of the
future exercise of a power not held in a fiduciary capacity is not barred by
its previous exercise unless the power is exercisable in favor of the
disclaimant.
     (5) A disclaimer is barred or limited if
so provided by a law other than ORS 105.623 to 105.649.
     (6) A disclaimer is barred if the purpose
or effect of the disclaimer is to prevent recovery of money or property to be
applied against a judgment for restitution under ORS 137.101 to 137.109.
     (7) A disclaimer of a power over property
that is barred under this section is ineffective. A disclaimer of an interest
in property that is barred under this section takes effect as a transfer of the
interest disclaimed to the persons who would have taken the interest under ORS
105.623 to 105.649 had the disclaimer not been barred. [2001 c.245 §13; 2007
c.483 §1]
     105.645
Tax qualified disclaimer.
Notwithstanding any other provision of ORS 105.623 to 105.649, if as a result
of a disclaimer or transfer the disclaimed or transferred interest is treated
pursuant to the provisions of the Internal Revenue Code and the regulations
promulgated under that code, as in effect on January 1, 2002, as never having
been transferred to the disclaimant, then the disclaimer or transfer is
effective as a disclaimer under ORS 105.623 to 105.649. [2001 c.245 §14]
     105.646
Recording of disclaimer. If
an instrument transferring an interest in property or a power over property
that is subject to a disclaimer is required or permitted by law to be filed,
recorded or registered, the disclaimer may be so filed, recorded or registered.
Failure to file, record or register the disclaimer does not affect the validity
of the disclaimer as between the disclaimant and persons to whom the property
interest or power passes by reason of the disclaimer. [2001 c.245 §15]
     105.647
Application to existing relationships. Except as otherwise provided in ORS 105.643, an interest in property
or power over property existing on January 1, 2002, may be disclaimed in the
manner provided by ORS 105.623 to 105.649 after January 1, 2002, unless the
time for delivering or filing a disclaimer had expired under law in effect
immediately before January 1, 2002. [2001 c.245 §16]
     105.648
Effect on recovery of money or property under ORS 411.620. ORS 105.623 to 105.649 do not allow any
person to disclaim an interest in property, including any jointly held
property, if the purpose or effect of the disclaimer is to prevent recovery of
money or property under ORS 411.620. [2001 c.245 §17]
     105.649
Uniformity of application and construction. In applying and construing ORS 105.623 to 105.649, consideration must
be given to the need to promote uniformity of the law with respect to
disclaimers among states that enact versions of the Uniform Disclaimer of
Property Interests Act. [2001 c.245 §18]
     105.655 [1971 c.780 §1; 1973 c.732 §4; 1979 c.258 §1;
1983 c.775 §1; 1991 c.968 §6; repealed by 1995 c.456 §9]
     105.660 [1971 c.780 §2; 1973 c.732 §3; repealed by
1995 c.456 §9]
     105.665 [1971 c.780 §3; repealed by 1995 c.456 §9]
     105.670 [1971 c.780 §4; repealed by 1995 c.456 §9]
PUBLIC USE OF
LANDS
     105.672
Definitions for ORS 105.672 to 105.696. As used in ORS 105.672 to 105.696:
     (1) “Charge”:
     (a) Means the admission price or fee
requested or expected by an owner in return for granting permission for a
person to enter or go upon the ownerÂ’s land.
     (b) Does not mean any amount received from
a public body in return for granting permission for the public to enter or go
upon the ownerÂ’s land.
     (2) “Harvest” has that meaning given in
ORS 164.813.
     (3) “Land” includes all real property,
whether publicly or privately owned.
     (4) “Owner” means the possessor of any
interest in any land, including but not limited to possession of a fee title. “Owner”
includes a tenant, lessee, occupant or other person in possession of the land.
     (5) “Recreational purposes” includes, but
is not limited to, outdoor activities such as hunting, fishing, swimming,
boating, camping, picnicking, hiking, nature study, outdoor educational
activities, waterskiing, winter sports, viewing or enjoying historical,
archaeological, scenic or scientific sites or volunteering for any public
purpose project.
     (6) “Special forest products” has that
meaning given in ORS 164.813.
     (7) “Woodcutting” means the cutting or
removal of wood from land by an individual who has obtained permission from the
owner of the land to cut or remove wood. [1995 c.456 §1; 2007 c.372 §1]
     Note: Section 2, chapter 372, Oregon Laws 2007,
provides:
     Sec.
2. The amendments to ORS
105.672 by section 1 of this 2007 Act apply to an entry or going upon land by
the public on or after the effective date of this 2007 Act [June 12, 2007],
regardless of whether the owner in return receives an amount from a public body
before, on or after the effective date of this 2007 Act. [2007 c.372 §2]
     105.675 [1971 c.780 §5; 1987 c.708 §4; repealed by
1995 c.456 §9]
     105.676
Public policy. The
Legislative Assembly hereby declares it is the public policy of the State of
Oregon to encourage owners of land to make their land available to the public
for recreational purposes, for woodcutting and for the harvest of special
forest products by limiting their liability toward persons entering thereon for
such purposes and by protecting their interests in their land from the
extinguishment of any such interest or the acquisition by the public of any
right to use or continue the use of such land for recreational purposes,
woodcutting or the harvest of special forest products. [1995 c.456 §2]
     105.677 [1973 c.732 §2; repealed by 1995 c.456 §9]
     105.680 [1971 c.780 §6; repealed by 1995 c.456 §9]
     105.682
Liabilities of owner of land used by public for recreational purposes,
woodcutting or harvest of special forest products. (1) Except as provided by subsection (2) of
this section, and subject to the provisions of ORS 105.688, an owner of land is
not liable in contract or tort for any personal injury, death or property
damage that arises out of the use of the land for recreational purposes,
woodcutting or the harvest of special forest products when the owner of land
either directly or indirectly permits any person to use the land for
recreational purposes, woodcutting or the harvest of special forest products.
The limitation on liability provided by this section applies if the principal
purpose for entry upon the land is for recreational purposes, woodcutting or
the harvest of special forest products, and is not affected if the injury,
death or damage occurs while the person entering land is engaging in activities
other than the use of the land for recreational purposes, woodcutting or the
harvest of special forest products.
     (2) This section does not limit the
liability of an owner of land for intentional injury or damage to a person
coming onto land for recreational purposes, woodcutting or the harvest of
special forest products. [1995 c.456 §3]
     105.685 [1979 c.434 §1; 1985 c.375 §1; repealed by
1995 c.456 §9]
     105.687 [1979 c.434 §2; repealed by 1995 c.456 §9]
     105.688
Applicability of immunities from liability for owner of land; restrictions. (1) Except as specifically provided in ORS
105.672 to 105.696, the immunities provided by ORS 105.682 apply to:
     (a) All public and private lands,
including but not limited to lands adjacent or contiguous to any bodies of
water, watercourses or the ocean shore as defined by ORS 390.605;
     (b) All roads, bodies of water,
watercourses, rights of way, buildings, fixtures and structures on the lands
described in paragraph (a) of this subsection; and
     (c) All machinery or equipment on the
lands described in paragraph (a) of this subsection.
     (2) The immunities provided by ORS 105.682
apply only if:
     (a) The owner makes no charge for
permission to use the land;
     (b) The owner transfers an easement to a
public body to use the land; or
     (c) The owner charges no more than $75 per
cord for permission to use the land for woodcutting. [1995 c.456 §4; 1999 c.872
§7; 2001 c.206 §1]
     105.689 [1979 c.434 §3; repealed by 1995 c.456 §9]
     105.691 [1979 c.434 §4; repealed by 1995 c.456 §9]
     105.692
No right to continued use of land if owner of land permits use of land; no
presumption of dedication or other rights. (1) An owner of land who either directly or indirectly permits any
person to use the land for recreational purposes, woodcutting or the harvest of
special forest products does not give that person or any other person a right
to continued use of the land for those purposes without the consent of the
owner.
     (2) The fact that an owner of land allows
the public to use the land for recreational purposes, woodcutting or the
harvest of special forest products without posting, fencing or otherwise
restricting use of the land does not raise a presumption that the landowner
intended to dedicate or otherwise give over to the public the right to
continued use of the land.
     (3) Nothing in this section shall be
construed to diminish or divert any public right to use land for recreational
purposes acquired by dedication, prescription, grant, custom or otherwise
existing before October 5, 1973.
     (4) Nothing in this section shall be
construed to diminish or divert any public right to use land for woodcutting
acquired by dedication, prescription, grant, custom or otherwise existing
before October 3, 1979. [1995 c.456 §5]
     105.693 [1979 c.434 §5; repealed by 1995 c.456 §9]
     105.695 [1979 c.434 §6; repealed by 1995 c.456 §9]
     105.696
No duty of care or liability created; exercise of care still required of person
using land. ORS 105.672 to
105.696 do not:
     (1) Create a duty of care or basis for
liability for personal injury, death or property damage resulting from the use
of land for recreational purposes, for woodcutting or for the harvest of
special forest products.
     (2) Relieve a person using the land of
another for recreational purposes, woodcutting or the harvest of special forest
products from any obligation that the person has to exercise care in use of the
land in the activities of the person or from the legal consequences of failure
of the person to exercise that care. [1995 c.456 §6]
     105.697 [1979 c.434 §7; repealed by 1995 c.456 §9]
     105.699
Rules applicable to state lands. The State Forester, under the general supervision of the State Board
of Forestry, may adopt any rules considered necessary for the administration of
the provisions of ORS 105.672 to 105.696 on state land. [1979 c.434 §8; 1995
c.456 §7]
     105.700
Prohibiting public access to private land; notice requirements; damages. (1) In addition to and not in lieu of any
other damages that may be claimed, a plaintiff who is a landowner shall receive
liquidated damages in an amount not to exceed $1,000 in any action in which the
plaintiff establishes that:
     (a) The plaintiff closed the land of the
plaintiff as provided in subsection (2) of this section; and
     (b) The defendant entered and remained
upon the land of the plaintiff without the permission of the plaintiff.
     (2) A landowner or an agent of the
landowner may close the privately owned land of the landowner by posting notice
as follows:
     (a) For land through which the public has
no right of way, the landowner or agent must place a notice at each outer gate
and normal point of access to the land, including both sides of a body of water
that crosses the land wherever the body of water intersects an outer boundary
line. The notice must be placed on a post, structure or natural object in the
form of a sign or a blaze of paint. If a blaze of paint is used, it must
consist of at least 50 square inches of fluorescent orange paint, except that
when metal fence posts are used, approximately the top six inches of the fence
post must be painted. If a sign is used, the sign:
     (A) Must be no smaller than eight inches
in height and 11 inches in width;
     (B) Must contain the words “Closed to
Entry” or words to that effect in letters no less than one inch in height; and
     (C) Must display the name, business
address and phone number, if any, of the landowner or agent of the landowner.
     (b) For land through which or along which
the public has an unfenced right of way by means of a public road, the
landowner or agent must place:
     (A) A conspicuous sign no closer than 30
feet from the center line of the roadway where it enters the land, containing
words substantially similar to “PRIVATE PROPERTY, NO TRESPASSING OFF ROAD NEXT _____
MILES”; or
     (B) A sign or blaze of paint, as described
in paragraph (a) of this subsection, no closer than 30 feet from the center
line of the roadway at regular intervals of not less than one-fourth mile along
the roadway where it borders the land, except that a blaze of paint may not be
placed on posts where the public road enters the land.
     (3) Nothing contained in this section
prevents emergency or law enforcement vehicles from entering upon the posted
land.
     (4) An award of liquidated damages under
this section is not subject to ORS 31.725, 31.730 or 31.735.
     (5) Nothing in this section affects any
other remedy, civil or criminal, that may be available for a trespass described
in this section. [1999 c.933 §1]
ACTION TO
ESTABLISH BOUNDARY
     105.705
Right to bring action; filing of judgment. (1) When any dispute or controversy exists between owners of adjacent
or contiguous lands in this state, concerning the boundary lines thereof, or
the location of the line dividing such lands, any party to the dispute or
controversy may bring an action in the circuit court in the county where all or
part of the lands are situated, for the purpose of having the controversy or
dispute determined, and the boundary line or dividing line ascertained and
marked by proper monuments upon the ground where such line is ascertained.
     (2) Upon final determination of the dispute
by the court, the clerk of the court shall file one copy of the judgment in the
office of the county surveyor, one copy in the office of the county assessor
and one copy in the office of the county officer who keeps the records of deeds
for recording in the county deed records. [Amended by 1965 c.24 §1; 1979 c.284 §97]
     105.710
Pleadings. The complaint in
a boundary suit is sufficient if it appears therefrom that the plaintiff and
defendant are owners of adjacent lands, some part of which is in the county in
which the suit is brought and that there is a controversy or dispute between
the parties concerning their boundary or dividing line. It shall not be
necessary to set forth the nature of the dispute or controversy except that the
plaintiff shall describe the boundary or dividing line as the plaintiff claims
it to be. The defendant in the answer shall set forth the nature of the claim
of the defendant with reference to the location of the line in controversy.
     105.715
Mode of proceeding. The mode
of proceeding in a boundary action is analogous to that of an action not
triable by right to a jury. At the time of entering the judgment fixing the
true location of the disputed boundary or dividing line the court shall appoint
three disinterested commissioners, one of whom shall be a registered
professional land surveyor, and shall direct the commissioners to go upon the
land of the parties and establish and mark out upon the grounds, by proper
monuments, the boundary or dividing line as ascertained and determined by the
court in its judgment. The monuments shall be established by or under the
direct supervision of the registered professional land surveyor who shall file
a record of survey, complying with ORS 209.250, with the county surveyor. [Amended
by 1979 c.284 §98; 1991 c.150 §1]
     105.718
Procedure for determining location of public land survey corner. If the proceeding in a boundary action
involves the location of a public land survey corner as defined by ORS 209.250
(3), the court shall determine the location of the public land survey corner by
the following method:
     (1) The court shall appoint three
disinterested commissioners who are registered professional land surveyors, one
of whom shall be the county surveyor of the county in which the action is brought,
and shall direct the commissioners to go upon the land of the parties and
establish and mark out upon the ground the true and correct location of the
corner in accordance with ORS 209.070. If the county surveyor of the county in
which the action is brought is interested in any tract of land, the title of
which is in dispute before the court, the court shall appoint the county
surveyor of an adjacent county to serve in lieu of the interested county
surveyor.
     (2) The three commissioners shall establish
and monument the true location of the corner in accordance with the current
United States Manual of Surveying Instructions. The monument set shall be in
accordance with the standards of the county surveyor of the county in which the
corner is located. For the purposes of ORS 672.002 (9)(b), the county surveyor
shall be the person in “responsible charge” and shall affix a seal and
signature to any plat or report prepared.
     (3) The county surveyor shall be
responsible for the preparation and filing of the survey in accordance with ORS
209.250.
     (4) The corner, when properly established
by the commission, shall be recognized by the court as the legal and permanent
corner. The decision of the commission is not subject to appeal.
     (5) The costs for the services of the
three commissioners shall be paid by either the plaintiff or the defendant, or
both, as determined by the court. [1991 c.150 §2; 1997 c.210 §10; 2005 c.445 §11]
     105.720
Oath and report of commissioners. Before entering upon the discharge of their duties, the commissioners
shall make and file their oath in writing to faithfully and impartially perform
their duties as commissioners. After designating the boundary or dividing line
by proper marks and monuments they shall file in the court a report of their
doings as commissioners, and the report shall be, when approved or confirmed by
the court, a part of the trial court file, as defined in ORS 19.005. [Amended
by 1967 c.471 §3]
     105.725
Proceedings on motion to confirm report. The report of the commissioners may be confirmed by the court upon
written motion of either party to the suit whenever it appears to the court
that the motion was served upon the adverse party two days before the
presentation thereof and no exceptions have been filed to the report within two
days after the service. If exceptions are filed to the report, they may be
heard with the motion to confirm, and the court may confirm, modify or set
aside the report as is just, and in the latter case may appoint a new
commission or refer the matter to the same commissioners with appropriate
instructions.
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. (1) As used in this section, “public road”
means a road used by the general public, whether designated as a state highway,
county or district road or otherwise, but does not include city streets under
ORS 105.760.
     (2) Whenever the Department of
Transportation changes the grade of any public road from a previously
established or maintained grade, the state shall be liable for and shall pay
just and reasonable compensation for any legal damage or injury to real
property abutting upon the public road affected by the grade change; except
that the state shall not be liable for any damage or injury for any such change
whenever the county has requested the Department of Transportation to make such
change.
     (3) Any person having any right, title or
interest in any such real property has a cause of action against the state to
enforce payment of the compensation. Any such action may be commenced and
maintained in the circuit court for the county in which the real property is
situated. Any party to any such action has the right to appeal as in other
civil actions from a judgment of any circuit court. Any person having or
claiming any right, title or interest in such real property may join as party
plaintiff or may intervene in any action involving the real property in which the
interest is claimed.
     (4) The trial circuit court shall, in its
general judgment, apportion such just compensation as it may award among the
various persons found by it to own or have some right, title or interest in
such real property. The awarded compensation shall be apportioned according to
the rules of law governing the distribution of awards made when real property
is taken under the power of eminent domain.
     (5) The liability of the state terminates
wholly when it pays into court the sums determined by the circuit court to be
just compensation. Any cause of action granted by this section is barred unless
such action is commenced within six months after the change of grade is
physically completed and accepted by the Department of Transportation. [1961
c.510 §1; 1973 c.197 §5; 2003 c.576 §239]
     105.760
State or county liability for damages resulting from change of grade of
streets; proceedings on cause of action. (1) If consent is given by the governing body of any city to change
any grade of any street as such grade has been established or maintained by the
consenting city and pursuant thereto the Department of Transportation or a
county changes the grade, the state or the county, whichever makes such change
of grade, shall be liable for and shall pay just and reasonable compensation
for any damage or injury to any real property abutting upon the road or street
affected by the grade change.
     (2) Any person having any right, title or
interest in any such real property has a cause of action against the state or
against the county to enforce payment of the compensation. Any such action may
be commenced and maintained in the circuit court for the county in which the
real property is situated. Any party to any such action has the right to appeal
as in any other civil action from a judgment of any circuit court. Any person
having or claiming any right, title or interest in such real property may join
as party plaintiff or may intervene in any action involving the real property
in which the interest is claimed.
     (3) The trial circuit court shall, in its
general judgment, apportion such just compensation as it may award among the
various persons found by it to own or have some right, title or interest in
such real property. The awarded compensation shall be apportioned according to
the rules of law governing the distribution of awards made when real property
is taken under the power of eminent domain.
     (4) The liability of the state or the
liability of the county, as the case may be, terminates wholly when it pays
into court the sums determined by the circuit court to be just compensation.
Any cause of action granted by this section is barred unless such action is
commenced within six months after the change of grade is physically completed
and accepted by the Department of Transportation or the county. [Formerly
373.040; 1973 c.197 §6; 2003 c.576 §240]
EXTINGUISHMENT OF FUTURE
INTERESTS
     105.770
Failure of contingency; application of extinguishment. (1) A special limitation or a condition
subsequent, which restricts a fee simple estate in land, and the possibility of
reverter or right of entry for condition broken thereby created, shall, if the
specified contingency does not occur within 30 years after the possibility of
reverter or right of entry was created, be extinguished and cease to be valid.
     (2) This section shall apply only to inter
vivos instruments taking effect after January 1, 1978, to wills where the
testator dies after such date, and to appointments made after such date,
including appointments by inter vivos instruments or wills under power created
before such date. [1977 c.723 §1]
     105.772
Preservation of future interests; filing of notice of intent required;
limitation. The following
shall apply to all possibilities of reverter and rights of entry limited on
fees simple existing on January 1, 1978:
     (1) A special limitation or a condition
subsequent, which restricts a fee simple estate in land, and the possibility of
reverter or right of entry for condition broken thereby created, shall be
extinguished and cease to be valid, unless within the time specified in this
section, a notice of intention to preserve such possibility of reverter or
right of entry is recorded as provided in ORS 105.770 to 105.774. Such
extinguishment shall occur at the end of the period in which the notice or
renewal notice may be recorded.
     (2) Any person owning such possibility of
reverter or right of entry may record in the deed records of the county in
which the land is situated a notice of intention to preserve such interest.
Such notice may be filed for record by any person who is the owner or part
owner of such interest, in which case the notice shall be effective as to the
person filing the notice and any other person who is a part owner thereof. If
any owner or part owner is a minor or financially incapable, as defined in ORS
125.005, the notice may be filed by a conservator appointed pursuant to a
protective proceeding under ORS chapter 125.
     (3) To be effective and to be entitled to
record, such notice shall contain an accurate and full description of all land
affected by such notice; but if such claim is founded upon a recorded
instrument, then the description may be by reference to the recorded
instrument. Such notice shall also contain the terms of the special limitation
or condition subsequent from which the possibility of reverter or right of
entry arises. The notice shall be executed, acknowledged, proved and recorded
in each county in which the land is situated in the same manner as a conveyance
of real property. In indexing such notices the county clerk shall enter such
notices under the grantee indexes of deeds under the names of the persons on
whose behalf such notices are executed.
     (4) An initial notice may be recorded not
less than 28 years, nor more than 30 years, after the possibility of reverter
or right of entry was created; provided, however, if such possibility of
reverter or right of entry was created prior to January 1, 1950, the notice may
be recorded within two years after January 1, 1978. A renewal notice may be
recorded after the expiration of 28 years and before the expiration of 30 years
from the date of recording of the initial notice, and shall be effective for a
period of 30 years from the recording of such renewal notice. In like manner,
further renewal notices may be recorded after the expiration of 28 years and
before the expiration of 30 years from the date of recording of the last
renewal notice. [1977 c.723 §2; 1995 c.664 §81]
     105.774
Exclusions from application of ORS 105.770 and 105.772. ORS 105.770 to 105.774 shall not apply to
conveyances made in favor of:
     (1) The State of
     (2) A corporation so long as it remains
qualified as a nonprofit corporation pursuant to ORS chapter 65. If a
corporation ceases to be so qualified, the conveyance to said corporation shall
be treated in the same manner as a conveyance subject to the provisions of ORS
105.772. [1977 c.723 §3]
MISCELLANEOUS
ACTIONS
     105.805
Action for waste. If a guardian,
conservator or tenant in severalty, or in common, for life or for years of real
property commits waste thereon, any person injured thereby may maintain an
action at law for damages against the guardian, conservator or tenant. In the
action there may be judgment for treble damages, forfeiture of the estate of
the party committing or permitting the waste and eviction from the property.
Forfeiture and eviction shall only be given in favor of the person entitled to
a reversion against the tenant in possession, when the injury to the estate in
reversion is determined in the action to be equal to the value of the tenantÂ’s
estate or unexpired term, or when the waste was committed with malice. [Amended
by 1973 c.823 §103]
     105.810
Treble damages for injury to or removal of produce, trees or shrubs; costs and
attorney fees; limitation on liability of contract logger. (1) Except as provided in ORS 477.090 and
subsections (4) to (7) of this section, whenever any person, without lawful
authority, willfully injures or severs from the land of another any produce
thereof or cuts down, girdles or otherwise injures or carries off any tree,
timber or shrub on the land of another person, or of the state, county, United
States or any public corporation, or on the street or highway in front of any
personÂ’s house, or in any village, town or city lot, or cultivated grounds, or
on the common or public grounds of any village, town or city, or on the street
or highway in front thereof, in an action by such person, village, town, city,
the United States, state, county, or public corporation, against the person
committing such trespasses if judgment is given for the plaintiff, it shall be
given for treble the amount of damages claimed, or assessed for the trespass.
In any such action, upon plaintiffÂ’s proof of ownership of the premises and the
commission by the defendant of any of the acts mentioned in this section, it is
prima facie evidence that the acts were committed by the defendant willfully,
intentionally and without plaintiffÂ’s consent.
     (2) A court may, in its discretion, award
to a prevailing party under subsection (1) of this section reimbursement of
reasonable costs of litigation including but not limited to investigation costs
and attorney fees.
     (3) A court may, in its discretion, award
to a prevailing plaintiff under subsection (1) of this section reasonable costs
of reforestation activities related to the injury sustained by the plaintiff.
     (4) A contract logger is liable only for
actual damages in an action under this section if:
     (a) The contract logger conducts an
operation under a signed, written contract with a person the contract logger
reasonably believes to be the legal owner of the produce, trees, timber or
shrubs in the operation area;
     (b) The contract identifies the operation
area by a metes and bounds description or other sufficient legal description;
     (c) Before the contract logger begins
harvesting in the operation area, the person who engages the contract logger
under the contract:
     (A) Locates, marks and protects from
damage all survey monuments in the operation area;
     (B) Flags, stakes or otherwise clearly
marks the boundaries of the operation area; and
     (C) Provides the contract logger with a
copy of the deed, contract or other instrument that the person who engages the
contract logger under the contract relies upon as proof of ownership of the
produce, trees, timber or shrubs in the operation area;
     (d) The contract logger verifies the deed,
contract or instrument described in paragraph (c)(C) of this subsection against
the metes and bounds description or other sufficient legal description in the
contract;
     (e) The contract logger retains a copy of
the deed, contract or instrument described in paragraph (c)(C) of this
subsection for at least three years; and
     (f) The contract logger does not receive
written notice that any person has a claim of title to the land or timber in
the operation area that is adverse to the person who engages the contract
logger under the contract.
     (5) Subsection (4) of this section does
not affect an action for double or treble damages against a contract logger for
damages outside the operation area as described in subsection (4) of this
section.
     (6) If an action is brought under this
section against a contract logger, and the contract logger was engaged to
harvest the timber by a person who purported to own the timber or to have
authority to harvest the timber, the person who engaged the contract logger
must be joined in the action as a defendant unless jurisdiction over the person
cannot be had. If a judgment is entered against the contract logger and against
the person who engaged the contract logger, the contract logger shall not be
required to pay any part of the judgment unless the plaintiff establishes that
the judgment cannot be enforced against the person who engaged the contract
logger. The plaintiff may enforce the judgment against the contract logger only
if:
     (a) The plaintiff makes a good faith
effort for at least six months after the judgment becomes final and subject to
execution to enforce the judgment against the person who engaged the contract
logger; and
     (b) The court determines, upon motion of
the plaintiff, that all or part of the judgment cannot be collected from the
person who engaged the contract logger.
     (7) Subsections (2) and (3) of this
section apply in an action against a contract logger under subsection (4) of
this section.
     (8) For purposes of this section:
     (a) “Contract logger” means a person
engaged in a commercial timber harvesting operation.
     (b) “Operation” has the meaning given in
ORS 527.620 (12). [Amended by 1995 c.721 §1; 1999 c.544 §1]
     105.815
When double damages are awarded for trespass; exception. (1) Except as provided in subsection (3) of
this section, if, upon the trial of an action included in ORS 105.810, it
appears that the trespass was casual or involuntary, or that the defendant had
probable cause to believe that the land on which the trespass was committed was
the land of the defendant or the land of the person in whose service or by
whose direction the act was done, or that the tree or timber was taken from
uninclosed woodland for the purpose of repairing any public highway or bridge
upon the land or adjoining it, judgment shall be given for double damages.
     (2) A judgment for the costs of litigation
and reforestation as provided in ORS 105.810 shall be in addition to and not in
lieu of a judgment for damages under this section.
     (3) This section does not apply to a
contract logger if the contract logger is subject only to actual damages under
ORS 105.810 (4). [Amended by 1995 c.721 §2; 1999 c.544 §2]
     105.820
Remedy of tenants in common.
A tenant in common may maintain any proper action, suit or proceeding against a
cotenant for receiving more than the just proportion of the rents or profits of
the estate owned by them in common.
     105.825
Action for injury to inheritance. A person seised of an estate in remainder or reversion may maintain a
civil action for any injury to the inheritance, notwithstanding the presence of
an intervening estate for life or years.
     105.830 [1981 c.841 §1; repealed by 1989 c.693 §21]
     105.831
Damages for injury to mining claim. If a court finds that a person has intentionally damaged or removed
mining equipment or has intentionally removed or injured minerals, soil,
gravel, sand, trees or shrubs located within the mining claim of another
person, the court shall award actual damages to such other person, including
any liability of such other person to third persons resulting from such damage,
removal or injury. In an appropriate case, the court may award punitive damages
to such other person. The court may award reasonable attorney fees to the
prevailing party in an action under this section. [1989 c.1049 §2; 1995 c.618 §56]
     105.835 [1981 c.841 §2; repealed by 1989 c.693 §21]
ACTION FOR REDUCED
COMMERCIAL PROPERTY VALUE RESULTING FROM STREET USE RESTRICTION
     105.850
Commercial property defined.
As used in ORS 105.850 to 105.870, “commercial property” means land and
improvements used in a business operated thereon for the production of income,
one of the principal aspects of which is the storing of motor vehicles or the
providing of lodging to travelers using private conveyances. [1973 c.702 §1]
     105.855
Requirement to compensate commercial property owners for reduced value of
property caused by street use restriction; effect of other access to property. Whenever after January 1, 1973, a city or
mass transit district, whether or not acting pursuant to its police powers or
condemnation authority, restricts use of the street traffic lane immediately
adjacent to a sidewalk abutting commercial property to public conveyances and
the existing access to that property by the general public by means of private
conveyances is thereby prohibited or materially restricted for more than six
hours in any 24-hour period, the city or mass transit district shall be liable
for and shall pay the difference between the fair market value of the property
prior to the restriction and the fair market value of the property subsequent
to the restriction, taking into account any special benefits to the property
resulting from improvements made by the city or mass transit district in
connection with the restriction. The fact that other access to the property
from a public way is available shall relieve the city or mass transit district
from liability if the other access is reasonably equal to the access prohibited
or materially restricted. [1973 c.702 §2]
     105.860
Cause of action against city for compensation; appeal procedure; intervention. Any person having any right, title or
interest in any such abutting real property has a cause of action against the
city to enforce payment of the compensation. Any such action may be commenced
and maintained in the circuit court for the county in which the real property
is situated. Any party to any such action has the right to appeal from the
judgment of the circuit court as in other actions. A person having or claiming
any right, title or interest in such real property may join as party plaintiff
and may intervene in any action involving the real property in which the
interest is claimed. [1973 c.702 §3; 2003 c.576 §241]
     105.865
Apportioning compensation among property owners; termination of city liability. (1) The circuit court shall, in its general
judgment, apportion such just compensation as it may award among the various
persons found by it to own or have some right, title or interest in such real
property. The awarded compensation shall be apportioned according to the rules
of law governing the distribution of awards made when real property is taken
under the power of eminent domain.
     (2) The liability of the city terminates
wholly when it pays into court the sums determined by the circuit court to be
just compensation. [1973 c.702 §4; 2003 c.576 §242]
     105.870
Limitation on commencement of action. Any cause of action granted by ORS 105.850 to 105.870 is barred unless
such action is commenced within 60 days after the date upon which the change of
use becomes effective and use of the streets is prohibited or restricted. [1973
c.702 §5]
SOLAR ENERGY
EASEMENTS
     105.880
Conveyance prohibiting use of solar energy systems void. (1) No person conveying or contracting to
convey fee title to real property shall include in an instrument for such purpose
a provision prohibiting the use of solar energy systems by any person on that
property.
     (2) Any provision executed in violation of
subsection (1) of this section after October 3, 1979, is void and
unenforceable.
     (3) For the purposes of this section, “solar
energy system” means any device, structure, mechanism or series of mechanisms
which uses solar radiation as a source for heating, cooling or electrical
energy. [1979 c.671 §5]
     105.885
Definitions for ORS 105.885 to 105.895. As used in ORS 105.885 to 105.895:
     (1) “Instrument” means a deed, contract,
covenant, condition, permit or order that creates an access right to sunlight.
     (2) “Solar energy easement” means any
easement, covenant or conditions designed to insure the passage of incident
solar radiation, light, air or heat across the real property of another.
     (3) “Solar envelope” means a
three-dimensional space over a lot representing height restrictions for
structures and vegetation on the lot designed to protect access to sunlight for
neighboring lots.
     (4) “Sun chart” means a representation
showing the plotted position of the sun. The chart shall display the path of
the sun during each hour of the day and each month of the year at the nearest
degree of latitude to the property. [1979 c.671 §6; 1981 c.722 §7]
     105.890
Solar energy easement appurtenant; termination. (1) A solar energy easement shall be
appurtenant to and run with the real property benefited and burdened by such an
easement.
     (2) A solar energy easement shall
terminate:
     (a) Upon the conditions stated therein;
     (b) By judgment of a court based upon
abandonment or changed conditions; or
     (c) At any time by agreement of all owners
of benefited and burdened property. [1979 c.671 §7; 2003 c.576 §370]
     105.895
Requirements for easement creation by instrument; recordation. (1) Any instrument creating a solar energy
easement or any other access right to sunlight shall contain:
     (a) A legal description of the real
property benefited and burdened by the easement; and
     (b) A description of the solar energy
easement sufficient to determine the space over the burdened property which
must remain unobstructed by means that shall include, but not be limited to:
     (A) A sun chart showing the plotted
skyline, including vegetation and structures from the perspective of the center
of the lower edge of the collector surface, and a drawing showing the size and
location of the collector surface being protected and its orientation with
respect to true south; or
     (B) A description of the solar envelope sufficient
to determine the space over the burdened property that must remain
unobstructed.
     (2) The instrument creating a solar energy
easement or any other access right to sunlight shall be recordable under ORS
93.710. The instrument shall be recorded in the chains of title of the
benefited and burdened properties as a transfer of the easement or access right
from the owner of the burdened property to the owner of the benefited property.
     (3) When an instrument creating a solar
energy easement is issued by a city or otherwise requires approval from a city,
the instrument shall be attested to and contain the original signature of a
city official in addition to the descriptions and chart required under
subsection (1) of this section.
     (4) An instrument creating a solar energy
easement shall be indexed when recorded by the name of the city and the names
of all parties claiming any interest in the real property benefited or burdened
by the easement. [1979 c.671 §8; 1981 c.590 §6; 1981 c.722 §8; 1991 c.230 §23]
WIND ENERGY
EASEMENTS
     105.900
“Wind energy easement” defined.
As used in ORS 105.905 and 105.910, “wind energy easement” means any easement,
covenant or condition designed to insure the undisturbed flow of wind across
the real property of another. [1981 c.590 §1]
     105.905
Wind energy easement appurtenant; termination. (1) A wind energy easement shall be
appurtenant to and run with the real property benefited and burdened by the
easement.
     (2) A wind energy easement shall
terminate:
     (a) Upon occurrence of the conditions
stated in the creating instrument;
     (b) By judgment of a court based upon
abandonment or changed conditions; or
     (c) At any time by agreement of all the
owners of the benefited and burdened property. [1981 c.590 §2; 2003 c.576 §371]
     105.910
Requirements for easement creation by instrument; recordation. (1) An instrument creating a wind energy
easement shall include:
     (a) A legal description of the real
property benefited and burdened by the easement;
     (b) A description of the dimensions of the
easement sufficient to determine the horizontal space across and the vertical
space above the burdened property that must remain unobstructed;
     (c) The restrictions placed upon
vegetation, structures and other objects that would impair or obstruct the wind
flow across and through the easement; and
     (d) The terms or conditions, if any, under
which the easement may be changed or terminated.
     (2) The instrument creating a wind energy
easement shall be recordable under ORS 93.710. If recorded, the instrument
shall be recorded as a transfer of the easement from the owner of the burdened
property to the owner of the benefited property. [1981 c.590 §3]
     105.915
Instrument creating lease or lease option of real property for wind energy
conversion system may be recorded; requirements. (1) An instrument creating a lease or an
option to lease real property or the vertical space above real property for a
wind energy conversion system or for wind measuring equipment shall be
recordable under ORS 93.710.
     (2) An instrument described in subsection
(1) of this section shall contain:
     (a) The parties’ names;
     (b) A legal description of the real
property involved;
     (c) The nature of the interest created;
     (d) The consideration paid for the
transfer; and
     (e) The terms or conditions, if any, under
which the interest may be revised or terminated.
     (3) As used in this section, “wind energy
conversion system” means any device, supporting structure, mechanism or series
of mechanisms that uses wind for the production of electricity or a mechanical
application. [1981 c.590 §4]
PERSONAL PROPERTY
RIGHTS
     105.920
Joint tenancy in personal property; creation. There shall be a form of coownership of personal property known as
joint tenancy. A joint tenancy shall have the incidents of survivorship and
severability as at common law. A joint tenancy may be created only by a written
instrument which expressly declares the interest created to be a joint tenancy.
It may be created by a transfer or bequest from a sole owner to others, or to
the sole owner and others; or from tenants in common or joint tenants to
others, or to themselves or some of them, or to themselves or any of them and
others; or from husband and wife, when holding title as community property or
otherwise, to others, or to themselves, or to one of them and to another or
others. A transfer or bequest creating a joint tenancy shall not derogate from
the rights of creditors. [Formerly 91.355]
MOTOR VEHICLE
EVENT DATA RECORDERS
     105.925
Definitions for ORS 105.925 to 105.945. As used in ORS 105.925 to 105.945:
     (1) “Event data recorder” has the meaning
given that term in 49 C.F.R 563.5, as in effect on January 1, 2008.
     (2) “Owner” means a person:
     (a) In whose name a motor vehicle is
registered or titled;
     (b) Who leases a motor vehicle for at
least three months;
     (c) Who is entitled to possession of a
motor vehicle as the purchaser under a security agreement; or
     (d) Who is the attorney in fact,
conservator or personal representative for a person described in paragraphs (a)
to (c) of this subsection. [2007 c.644 §1]
     105.928
Ownership of recorded data.
Except as specifically provided under ORS 105.925 to 105.945, the data on a
motor vehicle event data recorder is exclusively owned by the owner of the
motor vehicle and may not be retrieved or used by any person other than the
owner of the motor vehicle without the written consent of the owner. If a motor
vehicle is owned by more than one person, all owners must consent to the
retrieval or use of the data from a motor vehicle event data recorder. [2007
c.644 §2]
     105.932
Effect of vehicle ownership transfer on ownership of data; prohibited insurer
and lessor actions. (1) Data
on a motor vehicle event data recorder does not become the property of a
lienholder or insurer solely because the lienholder or insurer succeeds in
ownership of a motor vehicle as a result of an accident.
     (2) An insurer may not condition the
payment or settlement of an ownerÂ’s claim on the ownerÂ’s consent to the
retrieval or use of the data on a motor vehicle event data recorder.
     (3) An insurer or lessor of a motor
vehicle may not require an owner to consent to the retrieval or use of the data
on a motor vehicle event data recorder as a condition of providing the policy
or lease. [2007 c.644 §3]
     105.935
Court order for retrieval or use of data by law enforcement officers or certain
emergency service providers.
Data from a motor vehicle event data recorder may be retrieved or used without
the consent of the owner after an accident if a court orders the production of
the data based on a determination by the court that:
     (1) A law enforcement officer has probable
cause to believe that a crime has occurred and that the data is relevant to the
investigation of the crime; or
     (2) A law enforcement officer, firefighter
or emergency medical services provider seeks to obtain the data in the course
of responding to or investigating an emergency involving the physical injury or
the risk of physical injury to any person. [2007 c.644 §4]
     105.938
Court order for retrieval or use of data by insurer. (1) Upon petition of an insurer, a court may
order that data from a motor vehicle event data recorder be retrieved or used
without the consent of the owner of the motor vehicle after an accident if the
court determines that:
     (a) The owner has a policy of insurance
for the vehicle issued by the insurer;
     (b) The data is necessary to reconstruct
the facts of the accident and to allow the insurer to determine the obligations
of the insurer under the insurance policy; and
     (c) An accurate and timely determination
of the facts of the accident cannot occur without the data.
     (2) A petition under this section must be
filed in the circuit court for the county in which the owner of the motor
vehicle resides. The petition must be served on the owner in the manner
provided by ORCP 7 not less than 30 days before a hearing on the petition. An
insurer filing a petition under this section must pay the filing fee specified
by ORS 21.110. [2007 c.644 §4a]
     105.942
Retrieval or use of data for responding to medical emergency, for medical
research or for vehicle servicing or repair. (1) Data from a motor vehicle event data recorder may be retrieved or
used without the consent of the owner to facilitate or determine the need for
emergency medical care for the driver or passenger of a motor vehicle that is
involved in a motor vehicle crash or other emergency, including the retrieval
of data from a company that provides subscription services to the owner of a
motor vehicle for in-vehicle safety and security communications systems.
     (2) Data from a motor vehicle event data
recorder may be retrieved or used without the consent of the owner to
facilitate medical research of the human bodyÂ’s reaction to motor vehicle
crashes if:
     (a) The identity of the owner or driver is
not disclosed in connection with the retrieved data; and
     (b) The last four digits of the vehicle
identification number are not disclosed.
     (3) Data from a motor vehicle event data
recorder may be retrieved or used without the consent of the owner to diagnose,
service or repair a motor vehicle. [2007 c.644 §5]
     105.945
Exempted data. ORS 105.925
to 105.945 do not apply to data that is stored or transmitted pursuant to a
subscription service agreement for the use of a recording device to record a
history of where a motor vehicle travels or for the transmission of data to a
central communications system. [2007 c.644 §6]
RULE AGAINST
PERPETUITIES
     105.950
Statutory rule against perpetuities. (1) A nonvested property interest is invalid unless:
     (a) When the interest is created, it is
certain to vest or terminate no later than 21 years after the death of an
individual then alive; or
     (b) The interest either vests or
terminates within 90 years after its creation.
     (2) A general power of appointment, not
presently exercisable because of a condition precedent, is invalid unless:
     (a) When the power is created, the
condition precedent is certain to be satisfied or become impossible to satisfy
no later than 21 years after the death of an individual then alive; or
     (b) The condition precedent either is
satisfied or becomes impossible to satisfy within 90 years after its creation.
     (3) A nongeneral power of appointment or a
general testamentary power of appointment is invalid unless:
     (a) When the power is created, it is
certain to be irrevocably exercised or otherwise to terminate no later than 21
years after the death of an individual then alive; or
     (b) The power is irrevocably exercised or
otherwise terminates within 90 years after its creation.
     (4) In determining whether a nonvested
property interest or a power of appointment is valid under subsection (1)(a),
(2)(a) or (3)(a) of this section, the possibility that a child will be born to
an individual after the individualÂ’s death is disregarded.
     (5) The language in a governing instrument
is inoperative to the extent it produces a period of time that exceeds 21 years
after the death of the survivor of the specified lives if, in measuring a
period from the creation of a trust or other property arrangement, that
language seeks:
     (a) To disallow the vesting or termination
of any interest or trust beyond the later of:
     (A) The expiration of a period of time not
exceeding 21 years after the death of the survivor of the specified lives in
being at the creation of the trust or other property arrangement; or
     (B) The expiration of a period of time
that exceeds or might exceed 21 years after the death of the survivor of lives
in being at the creation of the trust or other property arrangement.
     (b) To postpone the vesting or termination
of any interest or trust until:
     (A) The expiration of a period of time not
exceeding 21 years after the death of the survivor of the specified lives in
being at the creation of the trust or other property arrangement; or
     (B) The expiration of a period of time
that exceeds or might exceed 21 years after the death of the survivor of lives
in being at the creation of the trust or other property arrangement.
     (c) To operate in effect in any similar
fashion upon:
     (A) The expiration of a period of time not
exceeding 21 years after the death of the survivor of the specified lives in
being at the creation of the trust or other property arrangement; or
     (B) The expiration of a period of time
that exceeds or might exceed 21 years after the death of the survivor of lives
in being at the creation of the trust or other property arrangement. [1989
c.208 §1; 1993 c.273 §1]
     105.955
When nonvested property interest or power of appointment created. (1) Except as provided in subsections (2)
and (3) of this section and in ORS 105.970 (1), the time of creation of a
nonvested property interest or a power of appointment is determined under
general principles of property law.
     (2) For purposes of ORS 105.950 to
105.975, if there is a person who alone can exercise a power created by a
governing instrument to become the unqualified beneficial owner of either a
nonvested property interest or a property interest subject to a power of
appointment described in ORS 105.950 (2) or (3), the nonvested property interest
or power of appointment is created when the power to become the unqualified
beneficial owner terminates.
     (3) For purposes of ORS 105.950 to
105.975, a nonvested property interest or a power of appointment arising from a
transfer of property to a previously funded trust or other existing property
arrangement is created when the nonvested property interest or power of
appointment in the original contribution was created. [1989 c.208 §2]
     105.960
Reformation. Upon the
petition of an interested person, a court shall reform a disposition in the
manner that most closely approximates the transferorÂ’s manifested plan of
distribution and is within the 90 years allowed by ORS 105.950 (1)(b), (2)(b)
and (3)(b) if:
     (1) A nonvested property interest or a
power of appointment becomes invalid under ORS 105.950, statutory rule against
perpetuities;
     (2) A class gift is not but might become
invalid under ORS 105.950, statutory rule against perpetuities, and the time
has arrived when the share of any class member is to take effect in possession
or enjoyment; or
     (3) A nonvested property interest that is
not validated by ORS 105.950 (1)(a) can vest but not within 90 years after its
creation. [1989 c.208 §3]
     105.965
Exclusions from statutory rule against perpetuities. ORS 105.950, statutory rule against
perpetuities, does not apply to:
     (1) A nonvested property interest or a
power of appointment arising out of a nondonative transfer, except a nonvested
property interest or a power of appointment arising out of:
     (a) A premarital or postmarital agreement;
     (b) A separation or divorce settlement;
     (c) A spouse’s election;
     (d) A similar arrangement arising out of a
prospective existing or previous marital relationship between the parties;
     (e) A contract to make or not to revoke a
will or trust;
     (f) A contract to exercise or not to
exercise a power of appointment;
     (g) A transfer in satisfaction of a duty
of support; or
     (h) A reciprocal transfer;
     (2) A fiduciary’s power relating to the
administration or management of assets, including the power of a fiduciary to
sell, lease or mortgage property, and the power of a fiduciary to determine
principal and income;
     (3) A power to appoint a fiduciary;
     (4) A discretionary power of a trustee to
distribute principal before termination of a trust to a beneficiary having an
indefeasibly vested interest in the income and principal;
     (5) A nonvested property interest held by
a charity, government or governmental agency or subdivision, if the nonvested
property interest is preceded by an interest held by another charity,
government or governmental agency or subdivision;
     (6) A nonvested property interest in or a
power of appointment with respect to a trust or other property arrangement
forming part of a pension, profit sharing, stock bonus, health, disability,
death benefit, income deferral or other current or deferred benefit plan for
one or more employees, independent contractors or their beneficiaries or
spouses, to which contributions are made for the purpose of distributing to or
for the benefit of the participants or their beneficiaries or spouses the
property, income or principal in the trust or other property arrangement,
except a nonvested property interest or a power of appointment that is created
by an election of a participant or a beneficiary or spouse; or
     (7) A property interest, power of
appointment or arrangement that was not subject to the common-law rule against
perpetuities or is excluded by another statute of this state. [1989 c.208 §4]
     105.970
Prospective application. (1)
Except as extended by subsection (2) of this section, ORS 105.950 to 105.975
apply to a nonvested property interest or a power of appointment that is
created on or after January 1, 1990. For purposes of this section, a nonvested
property interest or a power of appointment created by the exercise of a power
of appointment is created when the power is irrevocably exercised or when a
revocable exercise becomes irrevocable.
     (2) If a nonvested property interest or a
power of appointment was created before January 1, 1990, and is determined in a
judicial proceeding, commenced on or after January 1, 1990, to violate this
stateÂ’s rule against perpetuities as that rule existed before January 1, 1990,
a court upon the petition of an interested person may reform the disposition in
the manner that most closely approximates the transferorÂ’s manifested plan of
distribution and is within the limits of the rule against perpetuities
applicable when the nonvested property interest or power of appointment was
created. [1989 c.208 §5]
     105.975
Short title; application and construction; supersession and repeal of common
law. (1) ORS 105.950 to
105.975 shall be cited as the Uniform Statutory Rule Against Perpetuities.
     (2) ORS 105.950 to 105.975 shall be
applied and construed to effectuate its general purpose to make uniform the law
with respect to the subject of ORS 105.950 to 105.975 among states enacting it.
     (3) ORS 105.950 to 105.975 supersede the
rule of the common law known as the rule against perpetuities. [1989 c.208 §§6,7,8]
_______________
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