Chapter 105 — Property Rights
2009 EDITION
PROPERTY RIGHTS
PROPERTY RIGHTS AND TRANSACTIONS
ACTIONS FOR RECOVERY OF REAL PROPERTY
105.005 Right of action; recovery; damages
105.010 Contents of complaint
105.015 Answer
105.020 Substitution of landlord for tenant
105.025 Verdict
105.030 Damages for withholding; setoff for improvements
105.035 Judgment when plaintiff’s right to possession expires
105.040 Order to make survey
105.045 Action not prejudiced by alienation by person in possession
105.050 Cotenant shall prove ouster
105.055 Conclusiveness of judgment
105.060 Effect of new trial on plaintiff’s possession
105.070 Rights of donee under Donation Law
105.075 Notice to quit; action to recover possession not affected by forcible entry or wrongful detainer
105.080 Reimbursement of tenants in common obtaining possession; lien
FORCIBLE ENTRY AND WRONGFUL DETAINER
105.105 Entry to be lawful and peaceable only
105.110 Action for forcible entry or wrongful detainer
105.111 Stay of eviction for state service member
105.112 Action by tenant to recover personal property; forms
105.113 Form of summons
105.115 Causes of unlawful holding by force; action for return of possession
105.117 Occupancy by employee of resident of dwelling unit
105.120 Notice necessary to maintain action in certain cases; waiver of notice; effect of advance payments of rent
105.121 Forms in action for possession of group recovery home; limitation on issues; attorney fees
105.123 Complaint
105.124 Form of complaint if ORS chapter 90 applies
105.126 Form of complaint if ORS chapter 90 does not apply
105.128 Landlord action to remove perpetrator of domestic violence, sexual assault or stalking from possession of dwelling unit; retention of possession by victim
105.130 How action conducted; fees; surcharge
105.132 Assertion of counterclaim
105.135 Service and return of summons; posting; contents; use of facsimile
105.137 Effect of failure of party to appear; attorney fees; judgment of dismissal; scheduling of trial; unrepresented defendant
105.138 Compelling arbitration; procedure
105.139 Burden of proof in certain cases
105.140 Continuance
105.145 Judgment on trial by court; duties of parties to stipulated agreement
105.146 Failure of defendant to perform as ordered; judgment of restitution
105.148 Contesting plaintiff’s affidavit or declaration of noncompliance; ex parte review of hearing request; delaying execution upon judgment of restitution
105.149 Hearing on compliance with order
105.151 Enforcement of judgment of restitution; notice of restitution
105.152 Form of notice of restitution for judgment entered under ORS 105.146
105.153 Form of notice of restitution for judgment not entered under ORS 105.146
105.156 Form of writ of execution for judgment of restitution
105.157 Form of eviction trespass notice
105.158 Service of notice of restitution
105.159 Computation of time before plaintiff may request writ of execution
105.161 Service and enforcement of writ of execution and eviction trespass notice
105.165 Alternative method of removing, storing and disposing of tenant’s personal property; requirements; landlord liability
105.168 Minor as party in proceedings pertaining to residential dwellings
EASEMENT OWNER OBLIGATIONS
105.170 Definitions for ORS 105.170 to 105.185
105.175 Easement to be kept in repair; sharing costs; agreements
105.180 Action for failure to comply with duty of holder; recovery of costs; arbitration
105.185 Application of ORS 105.170 to 105.185
MODIFICATION OF LEASE TERMS
105.190 Covenant of good faith and fair dealing; rights and obligations of parties
PARTITION
105.205 Who may maintain partition
105.210 When and how partition prevented
105.215 Complaint
105.220 Tenants and lien creditors as defendants; liens on undivided interests
105.225 Summons; to whom directed
105.230 Service by publication
105.235 Answer
105.240 Rights determinable; ascertainment of title where defendant defaults or sale is necessary
105.245 Sale or partition ordered by court
105.250 Compensation when equal partition cannot be made
105.255 How referees make partition; report
105.260 Power of court over report; final judgment
105.265 Persons not affected by judgment
105.270 Order of sale on referees’ report
105.275 Conclusiveness of order confirming report
105.280 How sale made; notice of sale
105.285 Distribution of proceeds of sale
105.290 Distribution of proceeds by referee or payment into court
105.295 Continuance of suit after proceeds paid into court
105.300 When lienholder has other securities
105.305 Credit allowed
105.310 Setting off estate for life or years in part not sold
105.315 Disposition of life estate or leasehold
105.320 Compensation of tenants in case of sale
105.325 When court determines value of tenancy
105.330 Rules for determining value of certain estates
105.335 Protection of unknown tenants
105.340 Provision for future rights or interests
105.345 Notice of terms of sale; separate sale of distinct parcels
105.350 Purchase by referee, conservator or guardian forbidden
105.355 Report of sale
105.360 Exception to report; confirmation of sale; order of confirmation
105.365 Purchase by encumbrancer or party entitled to share
105.370 Investment of proceeds for certain parties
105.375 In whose name securities taken or investments made
105.380 When securities are payable to parties
105.385 Clerk’s treatment of securities and investments
105.390 When proceeds paid to conservator or guardian of infant
105.395 Payment of proceeds to conservator of incapacitated person
105.400 When conservator or guardian may consent to partition
105.405 Costs and expenses of partition
HOUSING RECEIVERSHIP
105.420 Findings; policy
105.425 Definitions for ORS 105.420 to 105.445 and 105.455
105.430 Receivership for buildings that constitute threat to public health, safety or welfare; procedure
105.435 Authority of receiver; financing agreements; fee; abatement work exempt from public contracting law
105.440 Review of abatement expenditures by court; lien for unpaid expenses
105.445 Effect on purchase money security interest of lien for unpaid abatement expenses
105.450 Termination of receivership
105.455 Short title
SELLER’S PROPERTY DISCLOSURE STATEMENT
105.462 Definitions for ORS 105.462 to 105.490
105.463 Preemptive effect of ORS 105.464
105.464 Form of seller’s property disclosure statement
105.465 Application of ORS 105.462 to 105.490, 696.301 and 696.870; disclosure statement
105.470 Exclusions from ORS 105.462 to 105.490, 696.301 and 696.870
105.475 Buyer’s statement of revocation of offer; criteria
105.480 Representations in disclosure statement; application
105.485 Allocation of burden of proof
105.490 Effect of ORS 105.462 to 105.490, 696.301 and 696.870 on rights and remedies
ACTIONS AND SUITS FOR NUISANCES
105.505 Remedies available for private nuisance
105.510 Procedure for abating a nuisance
105.515 Stay of issuance of warrant to abate
105.520 Justification of sureties; proceedings when nuisance is not abated
ABATEMENT OF NUISANCE ACTIVITIES OR CONDITIONS
105.550 Definitions for ORS 105.550 to 105.600
105.555 Places declared nuisances subject to abatement
105.560 Action to restrain or enjoin nuisance; jurisdiction; remedies
105.565 Complaint; service; jury trial; admissibility of reputation as evidence
105.575 Precedence of action on court docket
105.580 Order of abatement; cancellation
105.585 Costs of securing or decontaminating property as lien; priority of lien; filing notice of pendency
105.590 Intentional violation of order punishable as contempt; fine; imprisonment
105.595 Action to abate nuisance not to affect other remedies; exception
105.600 ORS 105.550 to 105.600 not to limit authority of cities or counties to further restrict activities
SUITS TO QUIET TITLE AND REMOVE CLOUD
105.605 Suits to determine adverse claims
105.610 Suit to cancel patent of donee under Donation Law
105.615 Action by tenant in common against cotenants
105.618 Adverse possession of railroad property
105.620 Acquiring title by adverse possession
UNIFORM DISCLAIMER OF PROPERTY INTERESTS
105.623 Short title
105.624 Definitions for ORS 105.623 to 105.649
105.626 Scope
105.628 Effect on other law
105.629 Power to disclaim; general requirements; when irrevocable
105.633 Disclaimer of interest in property
105.634 Disclaimer of rights of survivorship in jointly held property
105.636 Disclaimer of interest by trustee
105.638 Disclaimer of power of appointment or other power not held in fiduciary capacity
105.639 Disclaimer by appointee, object or taker in default of exercise of power of appointment
105.641 Disclaimer of power held in fiduciary capacity
105.642 Delivery or filing
105.643 When disclaimer barred or limited
105.645 Tax qualified disclaimer
105.646 Recording of disclaimer
105.647 Application to existing relationships
105.648 Effect on recovery of money or property under ORS 411.620
105.649 Uniformity of application and construction
PUBLIC USE OF LANDS
105.672 Definitions for ORS 105.672 to 105.696
105.676 Public policy
105.682 Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products
105.688 Applicability of immunities from liability for owner of land; restrictions
105.692 Right to continued use of land following permitted use; presumption of dedication or other rights
105.696 Duty of care or liability not created; exercise of care required of person using land
105.699 Rules applicable to state lands
105.700 Prohibiting public access to private land; notice requirements; damages
ACTION TO ESTABLISH BOUNDARY
105.705 Right to bring action; filing of judgment
105.710 Pleadings
105.715 Mode of proceeding
105.718 Procedure for determining location of public land survey corner
105.720 Oath and report of commissioners
105.725 Proceedings on motion to confirm report
ACTIONS BASED ON CHANGE OF GRADE
105.755 State liability for damages resulting from change of grade of roads other than city streets; proceedings on cause of action; limitation
105.760 State or county liability for damages resulting from change of grade of streets; proceedings on cause of action
EXTINGUISHMENT OF FUTURE INTERESTS
105.770 Failure of contingency; application of extinguishment
105.772 Preservation of future interests; filing of notice of intent required; limitation
105.774 Exclusions from application of ORS 105.770 and 105.772
MISCELLANEOUS ACTIONS
105.805 Action for waste
105.810 Treble damages for injury to or removal of produce, trees or shrubs; costs and attorney fees; limitation on liability of contract logger
105.815 When double damages are awarded for trespass; exception
105.820 Remedy of tenants in common
105.825 Action for injury to inheritance
105.831 Damages for injury to mining claim
105.834 Owner’s immunity from liability for theft of metal property
CARBON MONOXIDE ALARMS IN DWELLINGS
105.836 Definitions for ORS 90.317, 105.836 to 105.842 and 476.725
105.838 Carbon monoxide alarm in dwelling
105.840 Action by purchaser for failure of seller to install carbon monoxide alarm
105.842 Tampering with carbon monoxide alarm
105.844 Short title
ACTION FOR REDUCED COMMERCIAL PROPERTY VALUE RESULTING FROM STREET USE RESTRICTION
105.850 Commercial property defined
105.855 Requirement to compensate commercial property owners for reduced value of property caused by street use restriction; effect of other access to property
105.860 Cause of action against city for compensation; appeal procedure; intervention
105.865 Apportioning compensation among property owners; termination of city liability
105.870 Limitation on commencement of action
SOLAR ENERGY EASEMENTS
105.880 Conveyance prohibiting use of solar energy systems void
105.885 Definitions for ORS 105.885 to 105.895
105.890 Solar energy easement appurtenant; termination
105.895 Requirements for easement creation by instrument; recordation
WIND ENERGY EASEMENTS
105.900 “Wind energy easement” defined
105.905 Wind energy easement appurtenant; termination
105.910 Requirements for easement creation by instrument; recordation
105.915 Instrument creating lease or lease option of real property for wind energy conversion system may be recorded; requirements
PERSONAL PROPERTY RIGHTS
105.920 Joint tenancy in personal property; creation
MOTOR VEHICLE EVENT DATA RECORDERS
105.925 Definitions for ORS 105.925 to 105.945
105.928 Ownership of recorded data
105.932 Effect of vehicle ownership transfer on ownership of data; prohibited insurer and lessor actions
105.935 Court order for retrieval or use of data by law enforcement officers or certain emergency service providers
105.938 Court order for retrieval or use of data by insurer
105.942 Retrieval or use of data for responding to medical emergency, for medical research or for vehicle servicing or repair
105.945 Exempted data
RULE AGAINST PERPETUITIES
105.950 Statutory rule against perpetuities
105.955 When nonvested property interest or power of appointment created
105.960 Reformation
105.965 Exclusions from statutory rule against perpetuities
105.970 Prospective application
105.975 Short title; application and construction; supersession and repeal of common law
ACTIONS FOR RECOVERY OF REAL PROPERTY
105.005 Right of action; recovery; damages. (1) Any person who has a legal estate in real property and a present right to the possession of the property, may recover possession of the property, with damages for withholding possession, by an action at law. The action shall be commenced against the person in the actual possession of the property at the time, or if the property is not in the actual possession of anyone, then against the person acting as the owner of the property.
(2) In an action brought under subsection (1) of this section or in a separate action for damages only, a person who, throughout the vesting period, used or occupied land of another with the honest and objectively reasonable belief that the person was the actual legal owner of the land shall not be liable for:
(a) Double or treble damages under ORS 105.810 (1) to (3) or 105.815; or
(b) The value of the use or occupation of the land by the person throughout the vesting period. [Amended by 1989 c.1069 §2; 1991 c.109 §1; 1999 c.544 §3]
105.010 Contents of complaint. The plaintiff in the complaint shall set forth:
(1) The nature of the estate of the plaintiff in the property, whether it be in fee, for life, or for a term of years; including, when necessary, for whose life and the duration of the term.
(2) That the plaintiff is entitled to the possession thereof.
(3) That the defendant wrongfully withholds the property from the plaintiff to the damage of the plaintiff for such sum as is therein claimed.
(4) A description of the property with such certainty as to enable the possession thereof to be delivered if there is recovery.
105.015 Answer. The defendant shall not be allowed to give in evidence any estate, license or right of possession in the property in the defendant or another, unless the same is pleaded in the answer. If pleaded, the nature and duration of the estate, license or right of possession shall be set forth with the certainty and particularity required in a complaint. If the defendant does not defend for the whole of the property, the defendant shall specify for what particular part the defendant does defend.
105.020 Substitution of landlord for tenant. A defendant who is in actual possession may, for answer, plead that the defendant is in possession only as tenant of another; naming the landlord and the place of residence of the landlord. Thereupon the landlord, if the landlord applies therefor, shall be made defendant in place of the tenant and the action shall proceed in all respects as if originally commenced against the landlord. If the landlord does not apply to be made defendant within the day the tenant is allowed to answer, the landlord shall not be allowed to, but shall be made defendant if the plaintiff requires it. If the landlord is made defendant on motion of the plaintiff the landlord shall be required to appear and answer within 10 days from notice of the pendency of the action and the order making the landlord defendant, or such further notice as the court or judge thereof may prescribe.
105.025 Verdict. The jury by their verdict shall find as follows:
(1) If the verdict is for the plaintiff, that the plaintiff is entitled to the possession of all or a part of the property described in the complaint, or that the plaintiff owns an undivided share or interest in all or a part of the property; including the nature and duration of the estate of the plaintiff in such property.
(2) If the verdict is for the defendant, that the plaintiff is not entitled to the possession of the property described in the complaint, or the part that the defendant defends, and the estate, license or right to possession in such property established on the trial by the defendant, if any, as the same is required to be pleaded.
105.030 Damages for withholding; setoff for improvements. The plaintiff shall only be entitled to recover damages for withholding the property for the term of six years next preceding the commencement of the action, and for any period that may elapse from the commencement to the time of giving a verdict, excluding the value of the use of permanent improvements made by the defendant. When permanent improvements have been made upon the property by the defendant, or those under whom the defendant claims, while holding under color of title in good faith and adverse to the claim of the plaintiff, the value of the improvements at the time of trial shall be allowed as a setoff against such damages.
105.035 Judgment when plaintiff’s right to possession expires. If the right of the plaintiff to the possession of the property expires after the commencement of the action and before the trial, the verdict shall be given according to the fact and judgment shall be given only for the damages.
105.040 Order to make survey. (1) The court or judge thereof may, on motion, and after notice to the adverse party, or cause shown, grant an order allowing the party applying therefor to enter upon the property in controversy and make survey and admeasurement thereof for the purposes of the action.
(2) The order shall describe the property. A copy of the order shall be served upon the defendant, and thereupon the party may enter upon the property, and make the survey and admeasurement. If any unnecessary injury is done to the premises, the applying party is liable therefor.
105.045 Action not prejudiced by alienation by person in possession. An action for the recovery of the possession of real property against a person in possession is not prejudiced by any alienation made by such person, either before or after the commencement of the action. If the alienation is made after the commencement of the action, and the defendant does not satisfy the judgment recovered for damages for withholding the possession, the damages may be recovered by action against the purchaser.
105.050 Cotenant shall prove ouster. In an action by a tenant in common of real property against a cotenant, the plaintiff shall show, in addition to the evidence of right of possession, that the defendant either denied the plaintiff’s right or did some act amounting to a denial. [Amended by 1969 c.591 §281]
105.055 Conclusiveness of judgment. (1) Except as provided in subsection (2) of this section, the judgment in an action to recover the possession of real property is conclusive as to the estate in the property and the right to the possession thereof, so far as the same is thereby determined, upon the party against whom the judgment is given, and against all persons claiming from, through or under such party, after the commencement of the action.
(2) When service of the summons is made by publication and judgment is given for want of an answer, at any time within two years from the entry thereof the defendant or the successor in interest of the defendant as to the whole or any part of the property, shall, upon application to the court or judge thereof, be entitled to an order vacating the judgment and granting the defendant a new trial upon the payment of the costs of the action.
(3) In an action against a tenant the judgment is conclusive against a landlord, who has been made defendant in place of the tenant, to the same extent as if the action had been originally commenced against the landlord.
105.060 Effect of new trial on plaintiff’s possession. If the plaintiff has taken possession of the property before the judgment is set aside and a new trial granted as provided in ORS 105.055 (2), the possession is not thereby affected in any way. If judgment is given for the defendant in the new trial, the defendant is entitled to restitution by execution in the same manner as if the defendant were plaintiff.
105.065 [Repealed by 1969 c.591 §305]
105.070 Rights of donee under Donation Law. In an action at law for the recovery of the possession of real property, if either party claims the property as a donee of the United States under the Act of Congress approved September 27, 1850, commonly called the Donation Law, or the Acts amendatory thereto, such party from the date of settlement of the party on the property, as provided in said Acts, is deemed to have a legal estate in fee in the property. The estate shall continue upon the condition that the party performs the conditions required by such Acts, and is unconditional and indefeasible after the performance of such condition. If both plaintiff and defendant claim title to the same real property by virtue of settlement under such Acts, the settlement and the performance of the subsequent conditions shall be conclusively presumed in favor of the party having, or claiming under, the elder patent certificate or patent, unless it appears upon the face of such certificate or patent that it is absolutely void.
105.075 Notice to quit; action to recover possession not affected by forcible entry or wrongful detainer. In any action to recover the possession of real property, as provided for in ORS 105.005, notice to quit, when necessary, may be given as prescribed in ORS 91.050 to 91.110 and 105.120. Nothing in ORS 105.105 to 105.168 prevents such action from being maintained for the recovery of the possession of real property although the entry of the defendant is forcible or the holding is unlawful and with force as defined in ORS 105.105.
105.080 Reimbursement of tenants in common obtaining possession; lien. In all cases where property in this state is or has been claimed or owned by residents of this state in common with others, and such residents have obtained or shall obtain the possession of the property at their own cost, expense or labor, they are entitled to reimbursement from the remaining claimant in common of the property, according to their proportionate interest therein. Residents so obtaining possession of such property have a lien upon it until the remaining claimant has paid or tendered such proportionate share of the reasonable costs, expenses or labor aforesaid.
FORCIBLE ENTRY AND WRONGFUL DETAINER
105.105 Entry to be lawful and peaceable only. No person shall enter upon any land, tenement or other real property unless the right of entry is given by law. When the right of entry is given by law the entry shall be made in a peaceable manner and without force.
105.110 Action for forcible entry or wrongful detainer. When a forcible entry is made upon any premises, or when an entry is made in a peaceable manner and possession is held by force, the person entitled to the premises may maintain in the county where the property is situated an action to recover the possession of the premises in the circuit court or before any justice of the peace of the county. [Amended by 1985 c.241 §1; 1995 c.658 §68]
105.111 Stay of eviction for state service member. (1) As used in this section, “state service member” means a member of the organized militia who is called into active service of the state by the Governor under ORS 399.065 (1) for 30 or more consecutive days.
(2) In an action pursuant to ORS 105.110, the court may stay the eviction of the defendant for up to 90 days if:
(a) The defendant is a state service member;
(b) The agreed-upon rent does not exceed $1,200 per month; and
(c) The premises are occupied chiefly for dwelling purposes by the spouse, children or other dependents of the defendant.
(3) If the defendant requests a stay of the eviction for up to 90 days and the defendant can prove that the ability of the defendant to pay the agreed-upon rent is materially affected by being called into active service, the court may grant the stay of the eviction. [2003 c.387 §7]
Note: 105.111 was added to and made a part of 105.105 to 105.168 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
105.112 Action by tenant to recover personal property; forms. (1) A tenant or former tenant may bring an action to recover personal property taken or retained by a landlord in violation of ORS chapter 90.
(2) An action under this section shall be governed by the provisions of ORS 105.105 to 105.168 except that:
(a) The complaint shall be in substantially the following form and shall be available from the court clerk:
______________________________________________________________________________
IN THE _________ COURT FOR
THE COUNTY OF ____________
(Tenant), )
Plaintiff(s), )
)
vs. ) No.___
)
(Landlord), )
)
Defendant(s). )
COMPLAINT FOR RETURN
OF PERSONAL PROPERTY
I
Defendant(s) (is) (are) in possession of the following personal property belonging to the plaintiff(s):
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
See attached list.
II
Defendant(s) took the personal property alleged in paragraph I from premises rented by plaintiff(s) from defendant(s) at:
______________ (street and number)
______________ (city)
______________ (county)
III
Plaintiff(s) (is) (are) entitled to possession of the personal property because:
______ Defendant(s) took the personal property wrongfully because plaintiff(s) had not abandoned the property, and because either there was no court order awarding defendant(s) possession of the premises or the plaintiff(s) (was) (were) not continuously absent from the premises for seven days after such an order when defendant(s) removed the personal property.
______ Defendant(s) lawfully took possession of the personal property after enforcement of a court order for possession of the premises pursuant to ORS 105.165, but refused to return the personal property to plaintiff(s) without payment although plaintiff(s) demanded return of the property within the time provided by ORS 90.425 or 90.675.
______ Defendant(s) lawfully took possession of the personal property pursuant to ORS 105.161, but refused to return the personal property to plaintiff(s) although plaintiff(s) offered payment of all sums due for storage and any costs of removal of the personal property and demanded return of the property within the time provided by ORS 90.425 or 90.675.
______Other: ______________
______________________________________________________________________________
______________________________________________________________________________
Wherefore, plaintiff(s) pray(s) for possession of the personal property and costs and disbursements incurred herein.
________ ______________
Date Signature of Plaintiff(s)
______________________________________________________________________________
(b) The complaint shall be signed by the plaintiff or an attorney representing the plaintiff as provided by ORCP 17 or verified by an agent or employee of the plaintiff or an agent or employee of an agent of the plaintiff.
(c) The answer shall be in substantially the following form and shall be available from the court clerk:
______________________________________________________________________________
IN THE _________ COURT FOR
THE COUNTY OF ____________
(Tenant), )
)
Plaintiff(s), )
)
vs. ) No.___
)
(Landlord), )
)
Defendant(s). )
ANSWER
I (we) deny that the plaintiff(s) is (are) entitled to possession of the personal property subject of the complaint because:
______ The defendant(s) did not take and do not have possession of any of the property listed in the complaint.
______ The defendant(s) took possession of the personal property as provided in ORS 90.425 or 90.675 after giving written notice that it was considered abandoned, and the plaintiff(s) did not make a timely demand for return of the property.
______ The defendant(s) took possession of the personal property as provided in ORS 90.425 or 90.675 after giving written notice that it was considered abandoned, but not after a sheriff’s enforcement of an eviction judgment against the plaintiff(s) as provided in ORS 105.165, and the plaintiff(s) refused to pay charges lawfully due for storage.
______Other: ______________
______________________________________________________________________________
______________________________________________________________________________
I (we) ask that the plaintiff(s) take nothing by the complaint and that I (we) be awarded my (our) costs and disbursements.
________ ______________
Date Signature of defendant(s)
______________________________________________________________________________
(d) The issue at trial shall be limited to whether the plaintiff is entitled to possession of the personal property listed in the complaint.
(e) No claim for damages shall be asserted by either party in the action for possession of the personal property under this section, but each party may pursue any claim for damages in a separate action.
(f) A party may join an action for possession of personal property with an action for damages or a claim for other relief, but the proceeding is not governed by the provisions of ORS 105.105 to 105.168.
(g) If the court determines that the plaintiff is entitled to possession of the personal property that is the subject of the complaint, the court shall enter an order directing the sheriff to seize the personal property to which the court finds the plaintiff entitled, and to deliver that property to the plaintiff. The court may provide that the defendant have a period of time to deliver the property to the plaintiff voluntarily before execution. The costs of execution may be recovered in the manner provided in ORS 18.999.
(h) Subject to the provisions of ORCP 68, a prevailing party who has been represented by counsel may recover attorney fees as provided by ORS 90.255. [1989 c.506 §22; 1991 c.67 §21; 1997 c.577 §30; 2001 c.596 §46]
105.113 Form of summons. Notwithstanding ORCP 7 C, for premises to which ORS chapter 90 or ORS 91.120 applies, the summons must be in substantially the following form and be available from the court clerk:
______________________________________________________________________________
IN THE CIRCUIT COURT
FOR THE COUNTY OF
_________
No. _____
SUMMONS
RESIDENTIAL EVICTION
PLAINTIFF (Landlord or agent):
___________________________
___________________________
vs.
DEFENDANT (Tenants/Occupants):
___________________________
___________________________
TO: _______________ (Street address and city of property occupied by defendant)
_______________ (Mailing address if different)
NOTICE TO TENANTS:
READ THESE PAPERS CAREFULLY
YOUR LANDLORD WANTS TO
EVICT YOU
ON _________, 2_____ AT _____ A.M./P.M., you must come to the County Court House located at _________. You do not have to pay any fees to the court for this first hearing.
•If you do not appear in court and your landlord does, your landlord will win automatically and can have the Sheriff physically remove you.
•If you do show up in court and your landlord does not, this eviction action will be dropped.
•If both of you show up:
• The judge may ask you to try to reach an agreement with your landlord, but this is voluntary. Trained mediators may be available free of charge to help resolve disputes.
• The court will schedule a trial if you and your landlord do not reach an agreement or if you do not agree to move out.
IF YOU WANT A TRIAL, YOU MUST:
•Show up in court at the time scheduled above;
•On the same day, file an Answer with the Court giving a legal reason why you should not be evicted (the Court can give you a form);
•Give a copy of the Answer to your landlord (or your landlord’s agent or attorney); and
•Pay a filing fee of $_____ (the judge may allow payment to be deferred in certain circumstances).
IF YOU HAVE QUESTIONS, YOU SHOULD SEE AN ATTORNEY IMMEDIATELY. If you need help finding an attorney, you can call the Oregon State Bar’s Lawyer Referral Service at 503-684-3763 or toll-free in Oregon at 800-452-7636.
___________________________
Signature of Plaintiff (landlord or agent)
Plaintiff’s address:
_____________________
_____________________
Plaintiff’s telephone number: _________
I certify that this is a true copy of the original summons:
_____________________
Signature of Plaintiff (landlord or agent)
______________________________________________________________________________
[2001 c.596 §8]
105.115 Causes of unlawful holding by force; action for return of possession. (1) Except as provided by subsections (2) and (3) of this section, the following are causes of unlawful holding by force within the meaning of ORS 105.110, 105.123 and 105.126:
(a) When the tenant or person in possession of any premises fails or refuses to pay rent within 10 days after 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.
(d) When the person in possession of a premises remains in possession after the time when a purchaser of the premises is entitled to possession in accordance with the provisions of ORS 18.946 or 86.755.
(e) When the person in possession of a premises remains in possession after the time when a deed given in lieu of foreclosure entitles the transferee named in the deed to possession of the premises.
(f) When the person in possession of a premises remains in possession after the time when a seller is entitled to possession in accordance with the provisions of ORS 93.930 (2)(c) or pursuant to a judgment of strict foreclosure of a recorded contract for transfer or conveyance of an interest in real property.
(g) When the person in possession of a premises remains in possession after the expiration of a valid notice terminating the person’s right to occupy the premises pursuant to ORS 91.120, 91.130 or 105.117.
(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; 2009 c.569 §2; 2009 c.638 §1]
105.117 Occupancy by employee of resident of dwelling unit. (1) As used in this section, “dwelling unit” has the meaning given that term in ORS 90.100.
(2) An employee of a resident of a dwelling unit whose occupancy is conditional upon employment in and about the premises, and members of the employee’s household, may only be evicted pursuant to ORS 105.105 to 105.168 after at least 24 hours’ written notice of the termination of employment or a notice period set forth in a written employment contract, whichever is longer.
(3) This section does not create the relationship of landlord and tenant between the resident and the employee or members of the employee’s household. [2009 c.569 §1]
Note: 105.117 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 105 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
105.120 Notice necessary to maintain action in certain cases; waiver of notice; effect of advance payments of rent. (1) As used in this section, “rent” does not include funds paid under the United States Housing Act of 1937 (42 U.S.C. 1437f).
(2) Except as provided in subsection (3) of this section, an action for the recovery of the possession of the premises may be maintained in cases provided in ORS 105.115 (1)(b), when the notice to terminate the tenancy or to quit has been served upon the tenant or person in possession in the manner prescribed by ORS 91.110 and for the period prescribed by ORS 91.060 to 91.080 before the commencement of the action, unless the leasing or occupation is for the purpose of farming or agriculture, in which case the notice must be served for a period of 90 days before the commencement of the action. Any person entering into the possession of real estate under written lease as the tenant of another may, by the terms of the lease, waive the giving of any notice required by this subsection.
(3) An action for the recovery of the possession of a dwelling unit to which ORS chapter 90 applies may be maintained in situations described in ORS 105.115 (2) when the notice to terminate the tenancy or to quit has been served by the tenant upon the landlord or by the landlord upon the tenant or person in possession in the manner prescribed by ORS 90.155.
(4) Except when a tenancy involves a dwelling unit subject to ORS chapter 90, the service of a notice to quit upon a tenant or person in possession does not authorize an action to be maintained against the tenant or person in possession for the possession of premises before the expiration of any period for which the tenant or person has paid the rent of the premises in advance.
(5) An action to recover possession of a dwelling unit subject to ORS chapter 90 may not be brought or filed against a tenant or person in possession based upon a notice under ORS 90.427 to terminate the tenancy until after the expiration of any period for which the tenant or person has paid the rent of the dwelling unit in advance, unless:
(a) The only other money paid by the tenant was collected as a last month’s rent deposit as provided under ORS 90.300; or
(b) The only unused rent was paid by the tenant for a rental period extending beyond the termination date specified in a valid outstanding notice to terminate the tenancy and the landlord refunded the unused rent within six days after receipt by delivering the unused rent to the tenant in person or by first class mailing. [Amended by 1973 c.559 §35; 1981 c.753 §6; 1983 c.303 §5; 1985 c.588 §13; 1989 c.506 §18; 1993 c.369 §15; 1995 c.559 §52; 1997 c.577 §31; 1999 c.603 §35; 1999 c.676 §26; 2007 c.906 §36]
105.121 Forms in action for possession of group recovery home; limitation on issues; attorney fees. (1) A former tenant removed from a group recovery home under ORS 90.440 may bring an action for injunctive relief to recover possession if the removal was wrongful or in bad faith.
(2) An action under this section shall be governed by the provisions of ORS 105.105 to 105.168 except that:
(a) The complaint shall be in substantially the following form and shall be available from the court clerk:
______________________________________________________________________________
IN THE _________ COURT FOR
THE COUNTY OF ____________
(Tenant), )
Plaintiff(s), )
)
vs. ) No.___
)
(Landlord), )
)
Defendant(s). )
COMPLAINT FOR RETURN
OF POSSESSION OF A
DWELLING UNIT IN A
GROUP RECOVERY HOME
I
Defendant is a group recovery home subject to ORS 90.440. Defendant removed plaintiff from the group recovery home dwelling unit rented by plaintiff from defendant at:
______________ (street and number)
______________ (city)
______________ (county)
II
Notice of removal from the dwelling unit was served on plaintiff under ORS 90.440. The notice of removal was served on:
______________ (date)
III
Plaintiff is entitled to possession of the dwelling unit because:
______ Defendant removed plaintiff wrongfully by failing to comply with the procedural requirements of ORS 90.440.
______ Defendant removed plaintiff wrongfully because plaintiff did not use or possess alcohol or illegal drugs within seven days preceding delivery of a written notice of removal.
______ Defendant removed plaintiff under ORS 90.440 in bad faith.
Wherefore, plaintiff prays for possession of the group recovery home dwelling unit and costs and disbursements incurred herein.
________ ______________
Date Signature of plaintiff
______________________________________________________________________________
(b) The complaint shall be signed by the plaintiff or an attorney representing the plaintiff as provided by ORCP 17 and served by personal delivery on the group recovery home house president or a person in an equivalent leadership position for the group recovery home.
(c) The answer shall be in substantially the following form and shall be available from the court clerk:
______________________________________________________________________________
IN THE _________ COURT FOR
THE COUNTY OF ____________
(Tenant), )
)
Plaintiff(s), )
)
vs. ) No.___
)
(Landlord), )
)
Defendant(s). )
ANSWER
We deny that the plaintiff is entitled to possession of the group recovery home dwelling unit that is the subject of the complaint because:
______ The defendant removed the plaintiff in compliance with the procedural requirements of ORS 90.440.
______ The plaintiff used or possessed alcohol or illegal drugs as described in ORS 90.440 within seven days preceding delivery of a written notice of removal.
______ The defendant did not remove the plaintiff in bad faith as alleged.
We ask that the plaintiff take nothing by the complaint and that we be awarded our costs and disbursements.
________ ______________
Date Signature of defendant
______________________________________________________________________________
(d) The issue at trial shall be limited to whether the plaintiff is entitled to possession of the dwelling unit described in the complaint.
(e) If the basis for the complaint is that removal was wrongful because the plaintiff did not use or possess alcohol or illegal drugs, the defendant has the burden of proving that the plaintiff used or possessed alcohol or illegal drugs as described in ORS 90.440 within seven days preceding delivery of the written notice of removal.
(f) A claim for damages may not be asserted by either party in the action for possession of the dwelling unit under this section, but each party may pursue any claim for damages in a separate action.
(g) A party may join an action for possession of the dwelling unit with an action for damages or a claim for other relief, but the proceeding is not governed by the provisions of ORS 105.105 to 105.168.
(h) If the court determines that the plaintiff is entitled to possession of the dwelling unit that is the subject of the complaint, the court shall enter an order directing the defendant to return possession of the dwelling unit to the plaintiff. The court may provide that the defendant have a period of time to deliver possession of the dwelling unit to the plaintiff.
(i) Subject to the provisions of ORCP 68, a prevailing party who has been represented by counsel may recover attorney fees as provided by ORS 90.255. [2007 c.715 §5]
Note: 105.121 was added to and made a part of 105.105 to 105.168 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
105.123 Complaint. In an action pursuant to ORS 105.110, it is sufficient to state in the complaint:
(1) A description of the premises with convenient certainty;
(2) That the defendant is in possession of the premises;
(3) That, in the case of a dwelling unit to which ORS chapter 90 does not apply, the defendant entered upon the premises with force or unlawfully holds the premises with force; and
(4) That the plaintiff is entitled to the possession of the premises. [2001 c.596 §4 (105.123, 105.124 and 105.126 enacted in lieu of 105.125); 2007 c.508 §12]
105.124 Form of complaint if ORS chapter 90 applies. For a complaint described in ORS 105.123, if ORS chapter 90 applies to the dwelling unit:
(1) The complaint must be in substantially the following form and be available from the clerk of the court:
______________________________________________________________________________
IN THE CIRCUIT COURT
FOR THE COUNTY OF
_________
No. _____
RESIDENTIAL EVICTION COMPLAINT
PLAINTIFF (Landlord or agent):
__________________
__________________
Address: ______________
City: ______________
State:_________ Zip: ______
Telephone: _________
vs.
DEFENDANT (Tenants/Occupants):
__________________
__________________
MAILING ADDRESS: ___________
City: ______________
State:_________ Zip: ______
Telephone: _________
1.
Tenants are in possession of the dwelling unit, premises or rental property described above or located at:
_____________________
2.
Landlord is entitled to possession of the property because of:
___ 24-hour notice for personal
injury, substantial damage, extremely
outrageous act or unlawful occupant.
ORS 90.396 or 90.403.
___ 24-hour or 48-hour notice for
violation of a drug or alcohol
program. ORS 90.398.
___ 24-hour notice for perpetrating
domestic violence, sexual assault or
stalking. ORS 90.445.
___ 72-hour or 144-hour notice for
nonpayment of rent. ORS 90.394.
___ 7-day notice with stated cause in
a week-to-week tenancy. ORS 90.392 (6).
___ 10-day notice for a pet violation,
a repeat violation in a month-to-month
tenancy or without stated cause in a
week-to-week tenancy. ORS 90.392 (5),
90.405 or 90.427 (2).
___ 20-day notice for a repeat violation.
ORS 90.630 (4).
___ 30-day, 60-day or 180-day notice without
stated cause in a month-to-month
tenancy. ORS 90.427 (3) or (4) 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; 2009 c.431 §3]
105.125 [Amended by 1975 c.256 §9; 1981 c.753 §7; 1993 c.369 §16; 1995 c.559 §47; 1997 c.577 §32; repealed by 2001 c.596 §3 (105.123, 105.124 and 105.126 enacted in lieu of 105.125)]
105.126 Form of complaint if ORS chapter 90 does not apply. For a complaint described in ORS 105.123, if ORS chapter 90 does not apply to the premises:
(1) The complaint must be in substantially the following form and be available from the clerk of the court:
______________________________________________________________________________
IN THE CIRCUIT COURT
FOR THE COUNTY OF
_________
EVICTION COMPLAINT
(Tenancy not covered by ORS chapter 90)
No. _____
(Landlord),
Plaintiff(s)
vs.
(Tenant),
Defendant(s)
1.
Defendant is in possession of the following premises:
__________________
__________________(city)
2.
Defendant entered upon the premises with force or is unlawfully holding the premises with force.
3.
Plaintiff is entitled to possession of the premises, because:
_____ 30-day notice (month-to-month
tenancy)
_____ 30-day notice (cause)
_____ Other notice (explain) ________
_____ No notice (explain) _________
A COPY OF ANY NOTICE RELIED UPON IS ATTACHED
Wherefore, plaintiff prays for possession of the premises, costs and disbursements and attorney fees, if applicable.
__________________
Plaintiff
______________________________________________________________________________
(2) A copy of the notice relied upon, if any, must be attached to the complaint. [2001 c.596 §6 (105.123, 105.124 and 105.126 enacted in lieu of 105.125); 2003 c.378 §20]
105.128 Landlord action to remove perpetrator of domestic violence, sexual assault or stalking from possession of dwelling unit; retention of possession by victim. In an action for possession of a dwelling unit to which ORS chapter 90 applies:
(1) If the defendant raises a defense under ORS 90.449 based upon the defendant’s status as a victim of domestic violence, sexual assault or stalking and the perpetrator is a tenant of the dwelling unit, the court may issue an order terminating the tenancy of the perpetrator and ordering the perpetrator to vacate the dwelling unit without terminating the tenancy of the other tenants and without awarding possession to the plaintiff.
(2) If the action is based upon a notice terminating the tenancy of a perpetrator under ORS 90.445, the court may issue an order upholding the termination of the perpetrator’s tenancy and ordering the perpetrator to vacate the dwelling unit without the tenancy of the other tenants being terminated and without awarding possession to the plaintiff.
(3) If a court issues an order described in subsection (1) or (2) of this section, the court may enter judgment in favor of the plaintiff against the perpetrator. The plaintiff may enforce the judgment against the perpetrator as provided in ORS 105.151, but may not enforce the judgment against any other tenant of the dwelling unit. The sheriff shall remove only the perpetrator from the dwelling unit. The sheriff may not return possession of the dwelling unit to the plaintiff. [2007 c.508 §6]
Note: 105.128 was added to and made a part of 105.105 to 105.168 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
105.130 How action conducted; fees; surcharge. (1) Except as provided in this section and ORS 105.135, 105.137 and 105.140 to 105.161, an action pursuant to ORS 105.110 shall be conducted in all respects as other actions in courts of this state.
(2) Upon filing a complaint in the case of a dwelling unit to which ORS chapter 90 applies, the clerk shall:
(a) Collect a filing fee of $13;
(b) Collect any other fee authorized by law or ordinance; and
(c) With the assistance of the plaintiff or an agent of the plaintiff, complete the applicable summons and provide to the plaintiff or an agent of the plaintiff sufficient copies of the summons and complaint for service.
(3) After a complaint is filed under subsection (2) of this section, if the defendant demands a trial, the plaintiff shall pay an additional filing fee of $29 and the defendant shall pay a filing fee of $42.
(4) An action pursuant to ORS 105.110 shall be brought in the name of a person entitled to possession as plaintiff. The plaintiff may appear in person or through an attorney. In an action to which ORS chapter 90 applies, the plaintiff may also appear through a nonattorney who is an agent or employee of the plaintiff or an agent or employee of an agent of the plaintiff.
(5) Notwithstanding ORS 9.160, 9.320 and ORS chapter 180, a state agency may appear in an action brought pursuant to ORS 105.110 through an officer or employee of the agency if:
(a) The Attorney General consents to the representation of the agency by an officer or employee in the particular action or in the class of actions that includes the particular action; and
(b) The agency, by rule, authorizes an officer or employee to appear on its behalf in the particular type of action being conducted.
(6) In addition to the fees charged under subsection (2) of this section, the clerk shall collect a surcharge from the plaintiff at the time a complaint is filed that is subject to the filing fees established by subsection (2) of this section and from a defendant at the time a defendant demands a trial in the action. The surcharge shall be deposited by the State Court Administrator into the State Treasury to the credit of the Housing and Community Services Department Low Income Rental Housing Fund established by ORS 458.350. The amount of the surcharge shall be $10.
(7) A document or pleading shall be filed by the clerk only if the fees and surcharges required under this section are paid by the person filing the document or pleading or if an application for a waiver or deferral of fees and court costs is granted by the court under ORS 21.680 to 21.698. Fees and surcharges provided for in this section may not be refunded.
(8) An action brought under ORS 105.110 by a person entitled to possession of premises on the basis of circumstances described in ORS 105.115 (1)(d), (e) or (f) is subject to the filing fees and other court or sheriff fees applicable to an action concerning a dwelling unit that is subject to ORS chapter 90. The procedure under ORS 105.105 to 105.168 that is applicable to an action concerning a dwelling unit subject to ORS chapter 90 shall also apply to an action brought under ORS 105.115 (1)(d), (e) or (f), except that the complaint must be in the form prescribed in ORS 105.126. [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; 2009 c.638 §2]
Note: Section 4 (16), chapter 659, Oregon Laws 2009, provides:
Sec. 4. (16)(a) In addition to the fees provided for in ORS 105.130 (2), for the period commencing October 1, 2009, and ending June 30, 2011, 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 $12.
(b) In addition to the fees provided for in ORS 105.130 (3), for the period commencing October 1, 2009, and ending June 30, 2011, if the defendant demands a trial after a complaint is filed under ORS 105.130 (2), the plaintiff shall pay a surcharge of $2. [2009 c.659 §4(16)]
105.132 Assertion of counterclaim. No person named as a defendant in an action brought under ORS 105.105 to 105.168 may assert a counterclaim unless the right to do so is otherwise provided by statute. [1985 c.244 §2]
105.135 Service and return of summons; posting; contents; use of facsimile. (1) Except as provided in this section, the summons shall be served and returned as in other actions.
(2) At the time the clerk collects the filing fee under ORS 105.130, the clerk shall enter the first appearance date on the summons. That date shall be seven days after the judicial day next following payment of filing fees unless no judge is available for first appearance at that time, in which case the clerk may extend the first appearance date for up to seven additional days. At the request of the plaintiff, the clerk may enter a date more than seven days after the judicial day next following payment of filing fees if a judge will be available.
(3) Notwithstanding ORCP 10, by the end of the judicial day next following the payment of filing fees:
(a) The clerk shall mail a true copy of the summons and complaint by first class mail to the defendant at the premises.
(b) The process server shall serve the defendant with a true copy of the summons and complaint at the premises by personal delivery to the defendant or, if the defendant is not available for service, by attaching a true copy of the summons and complaint in a secure manner to the main entrance to that portion of the premises of which the defendant has possession.
(4) A sheriff may serve a facsimile of a certified true copy of a summons and complaint that is transmitted to the sheriff by a trial court administrator or another sheriff using a telephonic facsimile communication device. A copy of the facsimile must be attached to the sheriff’s return of service. Before transmitting a summons and complaint to a sheriff under this subsection, the person sending the facsimile must receive confirmation by telephone from the sheriff’s office that a telephonic facsimile communication device is available and operating.
(5) The process server shall indicate the manner in which service was accomplished by promptly filing with the clerk a certificate of service as provided by ORCP 7 F(2)(a).
(6) In the case of premises to which ORS chapter 90 applies, the summons shall inform the defendant of the procedures, rights and responsibilities of the parties as specified in ORS 105.137. [Amended by 1975 c.256 §11; 1977 c.327 §1; 1979 c.854 §2; 1981 c.753 §11; 1983 c.303 §6; 1983 c.581 §3; 1985 c.588 §14; 1995 c.559 §48; 1997 c.577 §33; 2007 c.255 §3]
105.137 Effect of failure of party to appear; attorney fees; judgment of dismissal; scheduling of trial; unrepresented defendant. In the case of a dwelling unit to which ORS chapter 90 applies:
(1) If the plaintiff appears and the defendant fails to appear at the first appearance, a default judgment shall be entered in favor of the plaintiff for possession of the premises and costs and disbursements.
(2) If the defendant appears and the plaintiff fails to appear at the first appearance, a default judgment shall be entered in favor of the defendant dismissing the plaintiff’s complaint and awarding costs and disbursements.
(3) An attorney at law shall be entitled to appear on behalf of any party, but attorney fees may not be awarded to the plaintiff if the defendant does not contest the action.
(4) If the plaintiff dismisses the action before the first appearance, a judgment of dismissal shall be entered in favor of the defendant dismissing the plaintiff’s complaint and awarding costs and disbursements. The defendant may not recover attorney fees for prejudgment legal services provided after the delivery of written notice of the dismissal by the plaintiff to the defendant, or to an attorney for the defendant, in the manner provided under ORS 90.155.
(5) The plaintiff or an agent of the plaintiff may obtain a continuance of the action for as long as the plaintiff or the agent of the plaintiff deems necessary to obtain the services of an attorney at law.
(6) If both parties appear in court on the date contained in the summons, the court shall set the matter for trial as soon as practicable, unless the court is advised by the parties that the matter has been settled. The trial shall be scheduled no later than 15 days from the date of such appearance. If the matter is not tried within the 15-day period, and the delay in trial is not attributable to the landlord, the court shall order the defendant to pay rent that is accruing into court, provided the court finds after hearing that entry of such an order is just and equitable.
(7)(a) The court shall permit an unrepresented defendant to proceed to trial by directing the defendant to file an answer in writing on a form which shall be available from the court clerk, and to serve a copy upon the plaintiff on the same day as first appearance.
(b) The answer shall be in substantially the following form:
______________________________________________________________________________
IN THE _________ COURT FOR
THE COUNTY OF ____________
(Landlord), )
)
Plaintiff(s), )
)
vs. ) No.___
)
(Tenant), )
)
Defendant(s). )
ANSWER
I (we) deny that the plaintiff(s) is (are) entitled to possession because:
__ The landlord did not make repairs.
List any repair problems: ________
________________________
________________________
__ The landlord is attempting to evict me (us) because of my (our) complaints (or the eviction is otherwise retaliatory).
__ The landlord is attempting to evict me because of my status as a victim of domestic violence, sexual assault or stalking.
__ The eviction notice is wrong.
__ List any other defenses: _________
________________________
________________________
________________________
________________________
I (we) may be entitled as the prevailing party to recover attorney fees from plaintiff(s) if I (we) obtain legal services to defend this action pursuant to ORS 90.255.
I (we) ask that the plaintiff(s) not be awarded possession of the premises and that I (we) be awarded my (our) costs and disbursements and attorney fees, if applicable, or a prevailing party fee.
________ ______________
Date Signature of defendant(s)
______________________________________________________________________________
(8) If an unrepresented defendant files an answer as provided in subsection (7) of this section, the answer may not limit the defenses available to the defendant at trial under ORS chapter 90. If such a defendant seeks to assert at trial a defense not fairly raised by the answer, the plaintiff shall be entitled to a reasonable continuance for the purposes of preparing to meet the defense. [1975 c.256 §13; 1979 c.765 §5; 1979 c.854 §3; 1981 c.753 §12; 1989 c.506 §19; 1997 c.577 §34; 2005 c.391 §33; 2007 c.508 §14]
105.138 Compelling arbitration; procedure. (1) Notwithstanding ORS 105.137 (6), if a party to an action to which ORS 90.505 to 90.840 apply moves for an order compelling arbitration and abating the proceedings, the court shall summarily determine whether the controversy between the parties is subject to an arbitration agreement enforceable under ORS 90.610 (2) and, if so, shall issue an order compelling the parties to submit to arbitration in accordance with the agreement and abating the action for not more than 30 days, unless the parties agree to an order of abatement for a longer period acceptable to the court.
(2) If the court issues an order compelling arbitration under subsection (1) of this section, the court may not order the payment of rent into court pending the arbitration unless the court finds such an order is necessary to protect the rights of the parties. [1989 c.918 §7; 1991 c.844 §20; 1995 c.559 §46; 2001 c.596 §49a; 2007 c.508 §15]
105.139 Burden of proof in certain cases. If a landlord brings an action for possession under ORS 90.403 and the person in possession contends that the tenant has not vacated the premises, the burden of proof is on the defendant as to that issue. [1983 c.303 §3; 1993 c.369 §34; 2003 c.378 §21; 2005 c.22 §81; 2005 c.391 §30]
105.140 Continuance. No continuance shall be granted to a defendant for a longer period than two days unless:
(1) The defendant gives an undertaking to the adverse party with good and sufficient security, to be approved by the court, conditioned for the payment of the rent that may accrue if judgment is rendered against the defendant; or
(2) In an action for the recovery of the possession of a dwelling unit to which ORS chapter 90 applies, the court orders a defendant to pay rent into court as it becomes due from the commencement of the action until entry of a general judgment in the action. If a defendant fails to pay rent into court as ordered under this subsection, the action shall be tried forthwith. [Amended by 1973 c.559 §36; 1977 c.365 §2; 1979 c.854 §4; 2003 c.576 §237]
105.145 Judgment on trial by court; duties of parties to stipulated agreement. (1) If an action is tried by the court without a jury, and after hearing the evidence the court concludes that the complaint is not true, the court shall enter judgment against the plaintiff for costs and disbursements. If the court finds the complaint true or if judgment is rendered by default, the court shall render a general judgment against the defendant and in favor of the plaintiff, for restitution of the premises and the costs and disbursements of the action. If the court finds the complaint true in part, the court shall render judgment for the restitution of such part only, and the costs and disbursements shall be taxed as the court deems just and equitable.
(2) If, as a result of a court-sponsored or other mediation or otherwise, the plaintiff and defendant agree, in the manner provided by ORCP 67 F for judgment by stipulation, that the defendant shall perform in a certain manner or that the plaintiff shall be paid moneys agreed to be owing by the defendant and that as a result of that performance or payment the defendant shall retain possession of the premises, including retention of possession contingent upon that performance or payment of moneys by the defendant by a certain date, the court shall enter an order or judgment to that effect. In addition, if the plaintiff and defendant agree that the plaintiff shall perform in a certain manner or pay moneys to the defendant by a certain date, the court shall enter an order or judgment to that effect.
(3) If, as provided by subsection (2) of this section, the parties enter an order or judgment by stipulation that requires the defendant to perform in a certain manner or make a payment by a certain date and the defendant later demonstrates compliance with the stipulation, the court shall enter a judgment of dismissal in favor of the defendant. [Amended by 1997 c.577 §35; 1999 c.603 §36; 2003 c.378 §22]
105.146 Failure of defendant to perform as ordered; judgment of restitution. (1) In an action to recover possession of the premises, if the court has entered an order by stipulation that provides for the defendant to retain possession of the premises contingent upon the defendant’s performance or payment of moneys by a certain date as provided under ORS 105.145 (2), and the defendant fails to comply with the order, the plaintiff may obtain and enforce a judgment of restitution of the premises pursuant to this section and ORS 105.148 and 105.149.
(2) A plaintiff may obtain and enforce a judgment of restitution based upon an order entered as provided under ORS 105.145 (2), provided the order includes only:
(a) Future performance or conduct as described in the order for a period of not more than six months following entry of the order;
(b) Payment of past due rent and other past due amounts pursuant to a schedule provided in the order for a period of not more than six months following entry of the order;
(c) Payment of rent due for future rental periods that follow entry of the order pursuant to a schedule provided in the order for not more than the first three monthly rental periods following entry of the order; and
(d) Payment of any costs, disbursements or attorney fees pursuant to a schedule provided in the order.
(3) The order shall contain a statement providing that 12 months following the entry of the order, the court shall automatically dismiss the order without further notice to either the plaintiff or the defendant.
(4) If the defendant fails to comply with the order, the plaintiff may file with the clerk of the court an affidavit or declaration of noncompliance describing how the defendant has failed to comply. The plaintiff shall attach a copy of the order to the affidavit or declaration. The affidavit or declaration, or the order, must include the terms of the underlying settlement agreement or stipulation or have a copy of the agreement attached.
(5) Upon receipt of a plaintiff’s affidavit or declaration:
(a) The court shall enter a judgment of restitution; and
(b) The clerk shall issue a notice of restitution as provided by ORS 105.151 and attach to the notice a copy of the plaintiff’s affidavit or declaration of noncompliance and any attachments for service.
(6) The court shall establish a procedure that allows the defendant to request a hearing on the plaintiff’s affidavit or declaration of noncompliance and delay expiration of the notice of restitution period or execution upon a judgment of restitution pending the hearing.
(7) The court shall enter a judgment dismissing the plaintiff’s action in favor of the defendant without assessment of costs, disbursements, prevailing party fee or attorney fees against either party except as provided in the order and without further notice to either party:
(a) Upon receipt of a writing signed by the plaintiff showing compliance with or satisfaction of the order; or
(b) Twelve months following entry of the order, unless the plaintiff has filed an affidavit or declaration of noncompliance and the court has found in favor of the plaintiff on the affidavit or declaration. [2001 c.596 §10 (105.146, 105.148 and 105.149 enacted in lieu of 105.147); 2003 c.378 §23; 2007 c.508 §16]
Note: 105.146 to 105.149 were added to and made a part of 105.105 to 105.168 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
105.147 [1999 c.603 §4; repealed by 2001 c.596 §9 (105.146, 105.148 and 105.149 enacted in lieu of 105.147)]
105.148 Contesting plaintiff’s affidavit or declaration of noncompliance; ex parte review of hearing request; delaying execution upon judgment of restitution. (1)(a) To contest a plaintiff’s affidavit or declaration of noncompliance under ORS 105.146 and delay expiration of the notice of restitution period or execution upon the judgment of restitution, a defendant shall file a request for hearing with the clerk of the court. The request must be filed prior to issuance by the clerk of a writ of execution of judgment of restitution and must include a statement by the defendant describing how the defendant complied with the order or describing why the defendant should not be required to comply.
(b) A court may, as part of the procedure authorized by ORS 105.146 (6), require that a defendant submit a hearing request to the court for ex parte review prior to the defendant’s filing the request with the clerk. If the court provides for ex parte review, the ex parte review must be available every judicial day for appearance by the defendant before the court within the time period between service of the notice of restitution and the date of expiration of the notice of restitution. The notice of restitution must include or have attached to it a description of the requirements for appearing before the court for ex parte review and a copy of the hearing request form. The court may not require that the defendant notify the plaintiff of the defendant’s intention to appear before the court. If, after hearing the defendant at the ex parte review, the court finds that the reasons given by the defendant for opposing the plaintiff’s affidavit or declaration of noncompliance do not relate to the issues listed in ORS 105.149 (2), the court shall deny the request for a hearing.
(2) The clerk shall make available a document providing for a request for hearing by a defendant. The document must be in substantially the following form:
______________________________________________________________________________
IN THE CIRCUIT COURT
FOR THE COUNTY OF
_________
Defendant’s Request for Hearing to
Contest an Affidavit or Declaration
of Noncompliance
Case No. _____
Landlord or agent (Plaintiff):
__________________
vs.
Tenant/Occupant (Defendant):
__________________
Address of Property:
__________________
__________________
1. My landlord has filed a statement with the court saying that I have not complied with a court-approved agreement and that as a result my landlord is entitled to possession of the property.
2. I deny the landlord is entitled to possession of the property because (The reason must be one of the following. You must check one or more of these responses and you must explain in section 3.):
_____ a. The landlord is wrong. As explained below, I did comply with the agreement.
_____ b. Before I could comply with the agreement, the landlord was supposed to do what is explained below, which the landlord did not do.
_____ c. The landlord and I changed the agreement and I complied with the agreement as changed. The change we agreed to is explained below.
_____ d. The landlord prevented me from keeping the agreement. The way the landlord did that is explained below.
_____ e. The agreement was not made in good faith as required by ORS 90.130. The lack of good faith is explained below.
_____ f. The portion of the agreement described below was unconscionable as described in ORS 90.135.
_____ g. The landlord is required by law or contract to have good cause to force me to move out and my alleged conduct or performance does not meet the standard of good cause, as explained below.
_____ h. The landlord is claiming I did not pay rent for a period of time following the date of the agreement. I did not pay that rent because I have claims for money against the landlord to offset the rent. Those claims arise from the landlord’s violation of the Residential Landlord and Tenant Act or the rental agreement since the date of the court order and are explained below.
3. Here is my explanation for the reason or reasons checked above:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
4. I understand that if I lose in court, I may be responsible for the landlord’s costs, disbursements, any attorney fees and a prevailing party fee.
I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.
_______________
(Signature of tenant)
Date: ________
______________________________________________________________________________
(3) As an alternative to the document described in subsection (2) of this section, a defendant may request a hearing by use of a notarized affidavit. [2001 c.596 §11 (105.146, 105.148 and 105.149 enacted in lieu of 105.147); 2003 c.378 §24; 2005 c.391 §35; 2007 c.508 §17]
Note: See note under 105.146.
105.149 Hearing on compliance with order. (1) Upon receipt of a timely filed request for hearing described in ORS 105.148, the clerk of the court:
(a) Shall schedule a hearing on the defendant’s request as soon as practicable;
(b) Shall notify both parties of the hearing date;
(c) Shall mail or send by facsimile a copy of the defendant’s request to the plaintiff; and
(d) May not issue a writ of execution of judgment of restitution pending the hearing.
(2)(a) At the hearing, except as provided in paragraph (b) of this subsection, the court may consider only the following issues:
(A) Whether the defendant complied with the order.
(B) Whether the plaintiff complied with any requirement of the order that is a predicate to compliance by the defendant.
(C) Whether the parties agreed to modify the order and complied with the modified order.
(D) Whether one party unfairly prevented compliance by the other party.
(b) If ORS chapter 90 applies to a dwelling unit, in addition to the issues described in paragraph (a) of this subsection, the court may consider the following issues:
(A) Whether the stipulated agreement was entered into in good faith as required by ORS 90.130 or is unconscionable as described in ORS 90.135.
(B) Whether, for a defendant whose noncompliance concerns performance or conduct, the noncompliance constitutes good cause for purposes of an applicable law or contract that requires the plaintiff to have good cause for terminating the tenancy.
(C) Whether, for a defendant whose noncompliance concerns a failure to pay rent due for future rental periods pursuant to ORS 105.146 (2)(c), the defendant has claims against the plaintiff for moneys that offset the rent. The defendant’s claims must be pursuant to ORS chapter 90 or the rental agreement and must have arisen after the entry of the order.
(c) The defendant may not raise defenses or claims involving issues other than issues described in paragraphs (a) and (b) of this subsection.
(3) If the court finds in favor of the plaintiff after the hearing, the clerk may issue a writ of execution of judgment of restitution. If the defendant did not appear at the hearing, the clerk may issue the writ immediately. If the defendant did appear, the clerk may issue the writ no earlier than 24 hours after the court’s ruling. Further notice to the defendant is not required.
(4) If the court finds in favor of the defendant after the hearing, the court shall set aside the judgment. The court may reinstate the order, terminate the order and enter a judgment dismissing the plaintiff’s action in favor of the defendant, enter a new order or schedule a trial on the plaintiff’s action as soon as practicable. [2001 c.596 §12 (105.146, 105.148 and 105.149 enacted in lieu of 105.147); 2003 c.378 §25; 2005 c.391 §36]
Note: See note under 105.146.
105.150 [Repealed by 1989 c.506 §20]
105.151 Enforcement of judgment of restitution; notice of restitution. (1) If the court renders judgment for restitution of the premises to the plaintiff, the plaintiff may only enforce that judgment in the following manner:
(a) Issuance by the clerk of the court and service upon the defendant of a notice of restitution that shall give the defendant four days to move out of the premises, including removal of all personal property; and
(b) After the expiration of the four-day period provided in the notice of restitution, issuance by the clerk of the court and service by the sheriff upon the defendant of a writ of execution of judgment of restitution, directing the sheriff to enforce the judgment by removing the defendant and by returning possession of the premises to the plaintiff, along with an eviction trespass notice from the sheriff.
(2) Following entry of judgment for restitution of the premises in favor of a plaintiff, or any date for possession as specified in the judgment, whichever is later, the plaintiff may request that the clerk of the court in which the judgment is entered issue a notice of restitution. The notice of restitution shall order the defendant to move out of the premises, including removing all personal property, in no less than four days. The plaintiff may direct the clerk to extend the notice period beyond four days. Following payment of any required fees, the clerk shall issue the notice.
(3) This section does not prevent a landlord in a tenancy to which ORS chapter 90 does not apply from exercising a right of entry provided by law and described in ORS 105.105 in order to recover possession of the premises, provided that the right of entry is stated in the rental agreement between the parties. [2001 c.596 §14 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154); 2003 c.378 §26]
105.152 Form of notice of restitution for judgment entered under ORS 105.146. If the court entered a judgment pursuant to ORS 105.146, a notice of restitution issued by the clerk of the court pursuant to ORS 105.151 must be in substantially the following form:
______________________________________________________________________________
IN THE CIRCUIT COURT FOR
THE COUNTY OF _________
Notice of Restitution
because of not complying
with a court-approved agreement
Case Number ______
TO: _____________________
(Tenant/Defendant)
___________________________
(Address of rental property)
You and your landlord made a court-approved agreement allowing you to stay in the property. Your landlord claims that you have not kept that agreement. (A copy of the landlord’s claim is attached.) Unless you can prove to the court why you should not have to move out, you must move by the MOVE OUT DATE listed below. If you do not, the landlord can have the Sheriff physically remove you.
If you believe that you have kept the agreement or that you have a legal reason for not keeping the agreement, you are entitled to a court hearing. Legal reasons are listed in ORS 105.148 and 105.149. They include the landlord interfering with your effort to keep the agreement and your complying with a modification of the agreement made by you and your landlord.
To request a hearing, you must go to the court and complete a form explaining why you believe that you have kept (or should not be required to keep) the agreement. You have to do this before _____ a.m./p.m. on _________. The Sheriff will not physically remove you from the property before the hearing.
If the judge rules against you at the hearing, the landlord can have the Sheriff physically remove you.
DEADLINE TO MOVE OUT
MOVE OUT DATE: _________
If you do not request a hearing, you must move out of the property no later than 11:59 p.m. on the Move Out Date.
If you and everyone else living there do not move out by that time, the Sheriff will physically remove you. You must also move all of your belongings by that time. Anything you leave behind will be stored or disposed of as allowed by law.
__________________
Deputy Court Administrator
______________________________________________________________________________
[2001 c.596 §15 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154); 2003 c.378 §27]
105.153 Form of notice of restitution for judgment not entered under ORS 105.146. If a court entered a judgment other than pursuant to ORS 105.146, a notice of restitution issued by the clerk of the court pursuant to ORS 105.151 must be in substantially the following form:
______________________________________________________________________________
In the Circuit Court for the
County of _________
NOTICE OF RESTITUTION
Case Number _________
TO: __________________
(Defendant/Tenant)
___________________________
___________________________
___________________________
(Address of property)
DEADLINE TO MOVE OUT
MOVE OUT DATE: _________
The Court has ordered you to move out of the property. You must move out no later than 11:59 p.m. on the Move Out Date.
If you and everyone else living there do not move out by that time, the Sheriff will physically remove you. You must also move all of your belongings by that time. Anything you leave behind will be stored or disposed of as allowed by law.
________________________
Deputy Court Administrator
______________________________________________________________________________
[2001 c.596 §16 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154)]
105.154 [1995 c.559 §50 (enacted in lieu of 105.155); 1995 c.658 §70a; 1997 c.577 §§36,37; 1999 c.603 §37; repealed by 2001 c.596 §13 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154)]
105.155 [Amended by 1979 c.765 §6; 1985 c.588 §15; 1993 c.369 §27; repealed by 1995 c.559 §49 (105.154 enacted in lieu of 105.155)]
105.156 Form of writ of execution for judgment of restitution. The writ of execution of judgment of restitution referred to in ORS 105.151 must be in substantially the following form:
______________________________________________________________________________
State of Oregon, ) WRIT OF
) ss. EXECUTION OF
) JUDGMENT OF
) RESTITUTION
County of _____ )
To the Sheriff:
This was an eviction action for possession of the following premises:
______________________
______________________
(city)
______________________
(county)
Judgment was entered that the plaintiff have restitution of the premises and that the plaintiff may be entitled to court costs and disbursements.
In the name of the State of Oregon, you are ordered to enforce and serve this writ on the defendant, in the manner provided in ORS 105.161.
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 Oregon;
(b) Is not the plaintiff, a relative of the plaintiff or an agent of the plaintiff for purposes of management of the premises;
(c) Is a person regularly employed in the business of serving process; and
(d) Charges a fee no greater than that set by ORS 21.410 (1)(a) for service of the notice of restitution.
(2) The sheriff or a process server shall serve the notice of restitution under ORS 105.152 or 105.153 in the manner provided by this subsection. Notwithstanding ORCP 10, by the end of the next judicial day following the payment of fees:
(a) The sheriff or process server shall mail a copy of the notice of restitution by first class mail to the defendant at the premises; and
(b) The sheriff or process server shall serve the notice of restitution at the premises by personal delivery to the defendant or, if the defendant is not available for service, by attaching a copy of the notice in a secure manner to the main entrance to that portion of the premises of which the defendant has possession.
(3) If service of the notice of restitution is made by a process server, by the end of the next judicial day following service the process server shall file with the clerk of the court a certificate of service in the same manner as provided by ORCP 7 F(2)(a). [2001 c.596 §19 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154); 2003 c.304 §8]
105.159 Computation of time before plaintiff may request writ of execution. (1) Notwithstanding ORCP 10, the four-day period specified in ORS 105.151 (2) shall:
(a) Commence at 12:01 a.m. on the day following mailing and service of the notice of restitution pursuant to ORS 105.158, including a Saturday or a Sunday or other legal holiday; and
(b) End on the fourth calendar day following the mailing and service except that if the fourth day is a Saturday or a Sunday or other legal holiday, the period shall end at 12 midnight of the day preceding the next judicial day.
(2) Except as provided in subsection (3) of this section, at any time after the expiration of the period provided in the notice of restitution, the plaintiff may request that the clerk of the court issue a writ of execution of judgment of restitution directing the sheriff to enforce the judgment of restitution by returning possession of the premises to the plaintiff. Following payment of any required fees, the clerk shall issue the writ in substantially the form provided by ORS 105.156.
(3) Unless the judgment otherwise provides, the clerk may not issue a notice of restitution or a writ of execution of judgment of restitution more than 60 days after the judgment is entered or after any date for possession as specified in the judgment, whichever is later. [2001 c.596 §20 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154)]
105.160 [Repealed by 1977 c.365 §3 and 1977 c.416 §5]
105.161 Service and enforcement of writ of execution and eviction trespass notice. (1) Following issuance of the writ of execution of judgment of restitution and payment of any fees required by the sheriff, the sheriff shall immediately enforce and serve the writ upon the defendant, along with the eviction trespass notice, as follows:
(a) The sheriff shall mail a copy of the writ and the eviction trespass notice by first class mail to the defendant at the premises;
(b) The sheriff shall serve the writ and the eviction trespass notice at the premises by personal delivery to the defendant or, if the defendant is not available for service, by attaching the writ and notice in a secure manner to the main entrance to that portion of the premises of which the defendant has possession;
(c) Immediately following the service of the writ and the eviction trespass notice, the sheriff shall return possession of the premises to the plaintiff by removing the defendant or any other person subject to the judgment; and
(d) Following the sheriff’s removal of the defendant and return of possession of the premises to the plaintiff, the plaintiff shall be responsible for removing, storing and disposing of any personal property left by the defendant on the premises, as provided by ORS 105.165.
(2) Following issuance of the writ, at the plaintiff’s request, the sheriff shall delay enforcement and service of the writ.
(3) Any writ not enforced and served within 30 days following issuance shall expire and become unenforceable.
(4) A judgment may not be enforced if the parties have entered a new rental agreement or if the plaintiff has accepted rent for a period of occupancy beginning after the judgment was entered. [2001 c.596 §21 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154); 2003 c.378 §31]
105.165 Alternative method of removing, storing and disposing of tenant’s personal property; requirements; landlord liability. (1) If ORS chapter 90 applies to a dwelling unit, following restitution of the premises to the plaintiff by the sheriff pursuant to ORS 105.161, the plaintiff shall remove, store and dispose of any personal property left by the defendant on the premises as provided in ORS 90.425 or 90.675.
(2) If ORS chapter 90 does not apply to a premises, the plaintiff or landlord shall remove, store and dispose of any personal property left by the defendant or tenant upon the premises following recovery of possession of the premises by the plaintiff or landlord:
(a) Pursuant to any landlord’s lien available under ORS 87.162;
(b) As provided by any rental agreement between the plaintiff or landlord and the defendant or tenant; or
(c) At the plaintiff or landlord’s discretion, by following the process described in ORS 90.425 (2), (3) and (5) to (11) and (13) to (16) except that:
(A) The plaintiff or landlord may require payment of any amount owed by the defendant or tenant to the plaintiff or landlord prior to allowing the defendant or tenant to remove or recover the personal property if the payment requirement is stated in the written notice; and
(B) ORS 90.425 may be applied to address only the rights and obligations of the plaintiff or landlord and defendant or tenant in the personal property and not the rights of other parties.
(3) Any cost incurred by the plaintiff for execution pursuant to ORS 105.151 or 105.158 to 105.161 or for removal, storage or sale of the defendant’s property under this section and not recovered pursuant to ORS 90.425 (13) or 90.675 (13) shall be added to the judgment.
(4) If the plaintiff fails to permit the defendant to recover possession of the defendant’s personal property under subsection (1) of this section, the defendant may recover from the plaintiff, in addition to any other amount provided by law, twice the actual damages or twice the monthly rent, whichever is greater. [1981 c.753 §9; 1989 c.506 §23; 1989 c.910 §5; 1993 c.369 §18; 1995 c.559 §51; 1997 c.577 §39; 2001 c.596 §48; 2003 c.378 §32; 2003 c.658 §10]
105.168 Minor as party in proceedings pertaining to residential dwellings. Notwithstanding ORCP 27 or any other provision of law, a minor, as defined in ORS 109.697 and who is a tenant as defined under ORS 90.100, may appear as a party without appointment of a guardian or guardian ad litem in an action for forcible entry or wrongful detainer, under ORS 105.105 to 105.168 regarding possession of a residential dwelling unit to which ORS chapter 90 applies, or in an action based upon a contract for a residential dwelling unit or for utility services provided to that unit. [1993 c.369 §31]
EASEMENT OWNER OBLIGATIONS
105.170 Definitions for ORS 105.170 to 105.185. For purposes of ORS 105.170 to 105.185:
(1) “Easement” means a nonpossessory interest in the land of another which entitles the holders of an interest in the easement to a private right of way, embodying the right to pass across another’s land.
(2) “Holders of an interest in an easement” means those with a legal right to use the easement, including the owner of the land across which the easement passes if the owner of the land has the legal right to use the easement. [1989 c.660 §1; 1991 c.49 §1]
105.175 Easement to be kept in repair; sharing costs; agreements. (1) The holders of an interest in any easement shall maintain the easement in repair.
(2) The cost of maintaining the easement in repair shall be shared by each holder of an interest in the easement, pursuant to the terms of any agreement entered into by the parties for that purpose or any recorded instrument creating the easement. Any such agreement, or a memorandum thereof, shall be recorded in the real property records of the county in which the easement is located. Failure to record the agreement shall not affect the enforceability of the agreement among the parties to the agreement and any other person with actual notice of the agreement.
(3) The cost of maintaining the easement in repair in the absence of an agreement and in the absence of maintenance provisions in a recorded instrument creating the easement shall be shared by each holder of an interest in the easement in proportion to the use made of the easement by each holder of an interest in the easement.
(4) Unless inconsistent with an agreement between the holders of an interest in an easement or a recorded instrument creating the easement, in determining proportionate use and settling conflicts the following guidelines apply:
(a) The frequency of use and the size and weight of vehicles used by the respective parties are relevant factors.
(b) Unless inappropriate, based on the factors contained in paragraph (a) of this subsection or other relevant factors, costs for normal and usual maintenance of the easement and costs of repair of the easement damaged by natural disasters or other events for which all holders of an interest in the easement are blameless may be shared on the basis of percentages resulting from dividing the distance of total normal usage of all holders of an interest in the easement into the normal usage distance of each holder of an interest in the easement.
(c) Those holders of an interest in the easement that are responsible for damage to the easement because of negligence or abnormal use shall repair the damage at their sole expense. [1989 c.660 §§2,3,4; 1991 c.49 §2]
105.180 Action for failure to comply with duty of holder; recovery of costs; arbitration. (1) If any holder of an interest in an easement fails to maintain the easement contrary to an agreement or contrary to the maintenance provisions of a recorded instrument creating the easement or, in the absence of an agreement or recorded instrument imposing maintenance obligations, fails after demand in writing to pay the holder’s proportion of the cost as indicated in ORS 105.175 (3) and (4), a civil action for money damages or specific performance or contribution may be brought against that person in a court of competent jurisdiction by one or more of the other holders of an interest in the easement, either jointly or severally. In any such civil action, the court may order such equitable relief as may be just in the circumstances. Nothing in ORS 105.170 to 105.185 shall impose a maintenance obligation on the holder of an interest in an easement based on the maintenance provisions in an instrument creating the easement if such holder is not a party to such instrument, whether the instrument is recorded or not, after such holder ceases to use the easement.
(2) The prevailing party shall recover all court costs, arbitration fees and attorney fees.
(3) Any holder of an interest in the easement may apply to the court of competent jurisdiction where the easement is located and that has jurisdiction over the amount in controversy for the appointment of an impartial arbitrator to apportion the cost, and the matter may be arbitrated in accordance with ORS 36.600 to 36.740. The application may be made before, during or after performance of the maintenance work. [1989 c.660 §5; 1991 c.49 §3; 2003 c.598 §34]
105.185 Application of ORS 105.170 to 105.185. The provisions of ORS 105.170 to 105.185:
(1) Apply to all easements existing on or created after January 1, 1992; and
(2) Do not apply to rights of way held or used by providers of public services including, but not limited to, railroad common carriers, pipeline companies, public utilities, electric cooperatives, people’s utility districts, water utility districts, municipally owned utilities and telecommunications utilities, when used for the sole purpose of provision of service or maintaining or repairing facilities for the provision or distribution of service. [1989 c.660 §6; 1991 c.49 §4]
MODIFICATION OF LEASE TERMS
105.190 Covenant of good faith and fair dealing; rights and obligations of parties. Whenever a covenant of good faith and fair dealing is implied in the lease of real property, a party’s rights or duties under such covenant may be modified only by express provision in the lease agreement. [1997 c.845 §1]
PARTITION
105.205 Who may maintain partition. When several persons hold real property as tenants in common, in which one or more of them have an estate of inheritance, or for life or years, or when several persons hold as tenants in common a vested remainder or reversion in any real property, any one or more of them may maintain a suit for the partition of the real property according to the respective rights of the persons interested therein, and for a sale of all or a part of the property if it appears that a partition cannot be had without great prejudice to the owner.
105.210 When and how partition prevented. (1) If the court finds that the property can neither be partitioned nor sold without great prejudice to the owners, the court may receive evidence as to the value of the respective interests, fix the value thereof, and make an order permitting an owner to borrow money upon the property with which to pay off the interest, as so fixed, of another owner. Subject to subsection (2) of this section, an owner whose interest in the property is to be satisfied shall be fully discharged by proof of payment filed with the court of the amount fixed by the court as the value of that owner’s interest. A discharged owner shall have no further interest in or claim upon the property.
(2) A court may not order the discharge of an interest of a public body in real property without the consent of the governing body of the public body. [Amended by 2001 c.606 §1]
105.215 Complaint. The interest of all known and unknown persons in the property shall be specifically and particularly set forth in the complaint for partition, as far as known to the plaintiff. If one or more of the parties, or the share or quantity of interest of any of the parties, is unknown to the plaintiff or is uncertain or contingent, or if the ownership of the inheritance depends upon an executory devise, or the remainder is a contingent remainder, so that the parties cannot be named, that fact shall be set forth in the complaint.
105.220 Tenants and lien creditors as defendants; liens on undivided interests. The plaintiff shall make a tenant in dower, by the curtesy, for life or for years of any portion of the entire property and creditors having a lien upon any portion of the property defendants in the suit. When the lien is upon an undivided interest or estate of any of the parties and a partition is made, it is thenceforth a lien only upon the share assigned to such party; but such share shall be first charged with its just proportion of the cost of the partition in preference to such lien.
105.225 Summons; to whom directed. The summons shall be directed by name to all the tenants in common who are known, to all lien creditors who are made parties to the suit and generally to all persons unknown having or claiming an interest or estate in the property.
105.230 Service by publication. If a party having a share or interest in or lien upon the property is unknown or cannot be found, and such fact is made to appear by affidavit, the summons may be served on the unknown or unlocated party by publication, directed by the court or judge, as in ordinary cases. When service of the summons is made by publication it must be accompanied by a brief description of the property which is the subject of the suit. [Amended by 1979 c.284 §95]
105.235 Answer. The defendant shall set forth in the answer the nature and extent of the interest of the defendant in the property. If the defendant is a lien creditor the defendant shall set forth how the lien was created, the amount of the debt secured thereby and remaining due, and whether such debt is secured in any other way, and if so, the nature of the other security.
105.240 Rights determinable; ascertainment of title where defendant defaults or sale is necessary. The rights of the plaintiffs and defendants may be put in issue, tried and determined in the suit. If a defendant fails to answer, or if a sale of the property is necessary, the title shall be ascertained by proof to the satisfaction of the court before the judgment for partition or sale is given. [Amended by 2003 c.576 §361]
105.245 Sale or partition ordered by court. If it is alleged in the complaint and established by evidence, or if it appears by the evidence to the satisfaction of the court without an allegation in the complaint, that the property or any part of it is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale of the property, and for that purpose may appoint one or more referees. Otherwise, upon the requisite proofs being made, it shall enter a judgment requiring a partition according to the respective rights of the parties, as ascertained by the court. The court shall appoint three referees to partition the property and shall designate the portion to remain undivided for the owners whose interest remain unknown or not ascertained. [Amended by 2003 c.576 §362]
105.250 Compensation when equal partition cannot be made. When it appears that partition cannot be made without prejudice to the rights and interests of some of the parties, the court may adjudge compensation to be made by one party to another on account of the inequality of partition. Compensation shall not be required to be paid to others by owners unknown, nor by infants unless it appears that an infant has personal property sufficient for that purpose, and that the interest of the infant will be promoted thereby.
105.255 How referees make partition; report. In making the partition the referees shall divide the property and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties as determined by the court. They shall designate the several portions by proper landmarks, and may employ a surveyor with the necessary assistants to aid them. The referees shall make a report of their proceedings, specifying therein the manner of executing their trust and describing the property divided and the shares allotted to each party with a particular description of each share.
105.260 Power of court over report; final judgment. The court may confirm or set aside the report in whole or in part and if necessary appoint new referees. Upon the report being confirmed, a judgment shall be given stating that the partition shall be effectual forever. Except as provided in ORS 105.265, the judgment is binding and conclusive:
(1) On all parties named therein, and their legal representatives, who have at the time any interest in any part of the property divided as owners in fee or as tenants for life or for years.
(2) On all parties named therein, and their legal representatives, entitled to the reversion, remainder or inheritance of the property or any part thereof after the termination of a particular estate therein, or who by any contingency may be entitled to a beneficial interest in the property.
(3) On all parties named therein, or their legal representatives, who have an interest in any undivided share of the property as tenants for years or for life.
(4) On all persons interested in the property who are unknown, to whom notice was given of the application for partition by publication, as directed by ORS 105.230.
(5) On all persons claiming from parties or persons listed in subsections (1) to (4) of this section. [Amended by 2003 c.576 §363]
105.265 Persons not affected by judgment. The judgment provided for in ORS 105.260 shall not affect tenants for years or for life of the whole of the property which is the subject of partition. Except as provided in ORS 105.260, the judgment and partition shall not preclude any person from claiming title to the property in question, or from controverting the title of the parties between whom the partition was made. [Amended by 2003 c.576 §364]
105.270 Order of sale on referees’ report. If the referees report to the court that the property to be partitioned, or any separate portion thereof, is so situated that a partition thereof cannot be made without great prejudice to the owners, and the court is satisfied that the report is correct, it may, by an order, direct the referees to sell the property or separate portion thereof so situated. [Amended by 2003 c.576 §365]
105.275 Conclusiveness of order confirming report. If the report of the referee is confirmed the order of confirmation is binding and conclusive upon all parties to the suit.
105.280 How sale made; notice of sale. All sales of real property made by the referees shall be made by public auction to the highest bidder in the manner required for the sale of real property on execution. The notice shall state the terms of sale. If the property or any part of it is to be sold subject to a prior estate, charge or lien, that fact shall be stated in the notice.
105.285 Distribution of proceeds of sale. The proceeds of the sale of encumbered property shall be distributed by the judgment of the court as follows:
(1) To pay the property’s just proportion of the general costs of the suit.
(2) To pay the costs of the reference.
(3) To satisfy the several liens in their order of priority, by payment of the sums due and to become due, according to the judgment.
(4) The residue among the owners of the property sold, according to their respective shares. [Amended by 2003 c.576 §366]
105.290 Distribution of proceeds by referee or payment into court. The proceeds of sale and the securities taken by the referees, or any part thereof, shall be distributed by them to the persons entitled thereto whenever the court so directs. If no such direction is given, all proceeds and securities shall be paid into court or deposited as directed by the court.
105.295 Continuance of suit after proceeds paid into court. When the proceeds of sales of any shares or parcel belonging to known persons who are parties to the suit are paid into court, the suit may be continued as between such parties for the determination by the court of their respective claims thereto. Further testimony may be taken in court, or by a referee, at the discretion of the court, and the court may, if necessary, require the parties to present the facts or law in controversy by pleadings as in an original suit.
105.300 When lienholder has other securities. Whenever any party to the suit, who holds a lien upon any part of the property has other securities for the payment of the amount of the lien, the court may, in its discretion, order the securities to be exhausted before a distribution of the proceeds of sale, or may order a just deduction to be made from the amount of the lien on the property.
105.305 Credit allowed. The court shall, in the order of sale, direct the terms of credit which may be allowed for the purchase money of any portion of the premises which it may direct to be sold on credit; and for that portion of which the purchase money is required by ORS 105.370 to be invested for the benefit of unknown owners, infants or parties out of the state. The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase money of such parts of the property as are directed by the court to be sold on credit, in the name of the clerk of the court and the clerk’s successor in office. When there is a known owner of full age, the security for the share of the owner shall be executed in the name of the owner.
105.310 Setting off estate for life or years in part not sold. When only a part of the property is ordered to be sold, the whole of an estate for life or years in an undivided share of the property may be set off in any part of the property not ordered to be sold.
105.315 Disposition of life estate or leasehold. When the estate of any tenant for life or years in any undivided part of the property in question was admitted by the parties or ascertained by the court to be existing at the time of the order of sale, and the person entitled to such estate was made a party to the suit, the estate may be first set off out of any part of the property and a sale made of such parcel subject to the tenants prior unsold estate; but if in the judgment of the court a due regard to the interest of all the parties requires that such estate should also be sold, the sale of the estate may be ordered.
105.320 Compensation of tenants in case of sale. Any person entitled to an estate for life or years in any undivided part of the property, whose estate has been sold, shall be entitled to receive such sum in gross as is, deemed, upon principles of law applicable to annuities, a reasonable satisfaction for the estate. If the person so entitled consents to that sum, the person shall accept it by executing an instrument that is duly acknowledged or proved in the same manner as deeds for the purpose of record, and filed with the clerk.
105.325 When court determines value of tenancy. If a tenant does not consent pursuant to ORS 105.320, before the report of sale, the court shall ascertain and determine what proportion of the proceeds of the sale, after deducting expenses, will be a just and reasonable sum to be invested for the tenant’s benefit, and shall order that sum to be deposited in court for that purpose.
105.330 Rules for determining value of certain estates. The proportion of the proceeds of the sale to be invested, as provided in ORS 105.325, shall be ascertained and determined as follows:
(1) If an estate in dower or curtesy is included in the order of sale its proportion shall be one-half of the proceeds of the sale of the property, or of the sale of the undivided share in the property upon which the claim or dower existed.
(2) If any other estate for life or years is included in the order of sale its proportion shall be the whole proceeds of the sale of the property, or of the sale of an undivided share of the property in which the estate existed.
105.335 Protection of unknown tenants. If any person entitled to an estate for life or years is unknown, the court shall provide for the protection of the rights of the person in the same manner, as far as possible, as if the person were known and had appeared.
105.340 Provision for future rights or interests. In all cases of sales in partition when it appears that any person has a vested or contingent future right or estate in any of the property sold, the court shall ascertain and settle the proportional value of the contingent or vested right or estate according to the principles of law applicable to annuities and survivorship, and shall direct such proportion of the proceeds of sale to be invested, secured or paid over in such manner as to protect the rights and interests of the parties. [Amended by 1969 c.591 §282]
105.345 Notice of terms of sale; separate sale of distinct parcels. In all cases of sales of property, the terms shall be known at the time. If the premises consist of distinct farms or lots they shall be sold separately, or otherwise if the court so directs.
105.350 Purchase by referee, conservator or guardian forbidden. Neither of the referees, nor any person for the benefit of either of them, shall be interested in any purchase at a partition sale; nor shall the guardian or conservator of the estate of an infant party be interested in the purchase of any real property that is the subject of the suit, except for the benefit of the infant. All sales contrary to the provisions of this section are void. [Amended by 1973 c.823 §99]
105.355 Report of sale. After completing the sale the referees shall report it to the court with the description of the different parcels of land sold to each purchaser, the name of the purchaser, the price paid or secured, the terms and conditions of the sale and the securities, if any, taken. The report shall be filed with the clerk.
105.360 Exception to report; confirmation of sale; order of confirmation. The report of sale may be excepted to by any party entitled to a share of the proceeds in like manner and with like effect as in ordinary cases. If the sale is confirmed the order of confirmation shall direct the referees to execute conveyances and take securities pursuant to the sale, which acts they are hereby authorized to do. The order shall discharge the property of the estate or interest of every person mentioned in ORS 105.260 and of tenants for life or years of the property sold. The order shall be binding and conclusive upon all such persons as if it were a judgment for the partition of such property and except as provided in ORS 105.350, upon all persons whomsoever as to the regularity of the proceedings concerning such sale. [Amended by 2003 c.576 §367]
105.365 Purchase by encumbrancer or party entitled to share. When a party entitled to a share of the property, or an encumbrancer entitled to have the lien of the encumbrancer paid out of the sale, becomes a purchaser, the referees may take a receipt for so much of the proceeds of the sale as belongs to the party or the encumbrancer.
105.370 Investment of proceeds for certain parties. When there are proceeds of sale belonging to an unknown owner, or to a person without the state who has no legal representative within it, or when there are proceeds arising from the sale of an estate subject to the prior estate of a tenant for life or years, which are paid into court or otherwise deposited by order of the court, such proceeds shall be invested in securities on interest for the benefit of the persons entitled thereto.
105.375 In whose name securities taken or investments made. Except as provided in ORS 105.380, security for the proceeds of sale shall be taken or investments of the proceeds shall be made in the name of the clerk of the court and the clerk’s successors in office, who shall hold the same for the use and benefit of the parties interested, subject to the order of the court.
105.380 When securities are payable to parties. When security is taken by the referees on a sale, and the parties interested in the security, by an instrument in writing under their hands delivered to the referees, agree upon the shares and proportions to which they are entitled, or when shares and proportions have been previously adjudged by the court, the securities shall be taken in the names of and payable to the parties entitled thereto, and shall be delivered to such parties upon their receipt therefor. Such agreement and receipt shall be returned and filed with the clerk.
105.385 Clerk’s treatment of securities and investments. The clerk in whose name a security is taken or by whom an investment is made, and the clerk’s successors in office, shall receive the interest and principal as it becomes due and apply and invest it as the court may direct. The clerk shall file in the office of the clerk all securities taken, and keep an account in a book provided and kept for that purpose in the office, free for inspection by all persons, of investments and moneys received and disposed of by the clerk.
105.390 When proceeds paid to conservator or guardian of infant. When the share of an infant is sold, the proceeds of the sale may be paid by the referees making the sale to the guardian of the infant, the conservator of the estate of the infant or the special guardian appointed for the infant in the suit, upon the guardian or conservator giving the security required by law or ordered by the court. [Amended by 1973 c.823 §100]
105.395 Payment of proceeds to conservator of incapacitated person. When the interest in real property of an incapacitated person has been sold, the share of the incapacitated person of the proceeds shall be given, on the behalf of the incapacitated person, to the conservator of the estate of the incapacitated person if the conservator executes, with sufficient sureties, an undertaking approved by the judge of the court, that the conservator will faithfully discharge the trust reposed in the conservator and will render a true and just account to the person entitled to the proceeds or to the legal representative of the person. [Amended by 1973 c.823 §101]
105.400 When conservator or guardian may consent to partition. When an infant or an incapacitated person is interested in real estate held in common or in any other manner so as to authorize the infant or incapacitated person being made a party to an action for the partition thereof, the guardian of the infant or incapacitated person or the conservator of the estate of the infant or incapacitated person may consent to a partition without suit and agree upon the share to be set off to the infant or incapacitated person. When the court so orders, the guardian or conservator may execute a release on behalf of the infant or other incapacitated person to the owners of the other shares of the parts to which they are respectively entitled. [Amended by 1973 c.823 §102; 1987 c.158 §17]
105.405 Costs and expenses of partition. (1) The expenses of the referees, including those of a surveyor and assistants of the surveyor when employed, shall be ascertained and allowed by the court, and the amount thereof, together with the fees allowed by law to the referees, shall be paid by the plaintiff, and may be allowed as part of the costs of partition.
(2) The reasonable costs of partition, including reasonable attorney fees and disbursements, that are for services performed for the common benefit of all parties, shall be paid by the parties that will share in the lands divided in proportion to their respective interests therein, and shall be included and specified in the judgment. They shall be a lien on the several shares, and the judgment may be enforced by execution against the parties separately. When, however, a controversy arises between some of the parties only, the court may require the expense of such controversy to be paid by any of, or all, the parties thereto. [Amended by 1971 c.502 §1; 2003 c.576 §368]
HOUSING RECEIVERSHIP
105.420 Findings; policy. (1) The Legislative Assembly recognizes that there exists residential property in this state that is insanitary and unsafe and that many citizens, especially those with lower incomes, are forced to live in and occupy these properties.
(2) The Legislative Assembly further recognizes that there are residential properties in this state that have not been maintained in compliance with basic sanitary and habitability standards and which have become abandoned. These conditions contribute to the spread of disease and criminal activity, create urban blight and community deterioration, adversely affect the state’s economic and social viability and otherwise detrimentally impact the public’s health, safety and welfare.
(3) In order to correct these conditions, it is necessary to revitalize these residential properties and thus add to the overall housing stock of this state. The Legislative Assembly deems it necessary to authorize county and municipal governments to adopt and implement receivership programs to allow for the upgrading of substandard and abandoned residential properties. [1989 c.649 §2]
105.425 Definitions for ORS 105.420 to 105.445 and 105.455. As used in ORS 105.420 to 105.445 and 105.455:
(1) “Abatement” means the removal or correction of any condition at a property including demolition that violates the provisions of any duly enacted building or housing code, as well as the making of such other improvements or corrections as are needed to effect the rehabilitation of the property or structure, but not including the closing or physical securing of the structure.
(2) “Building code” or “housing code” means any law, ordinance or governmental regulation concerning habitability or the construction, maintenance, operation, occupancy, use or appearance of any property.
(3) “Governing body” means the city council, board of commissioners, county court or other managing board of a municipality or county.
(4) “Interested party” means any person or entity that possesses any legal or equitable interest of record in the property, including but not limited to the holder of any lien or encumbrance of record on the property.
(5) “Property” means real property and all improvements thereon including edifices, structures, buildings, unit or part thereof used or intended to be used for residential purposes including single-family, duplex, multifamily structures and mixed-use structures which have one or more residential units. [1989 c.649 §3]
105.430 Receivership for buildings that constitute threat to public health, safety or welfare; procedure. (1) If residential property is found to be in violation of building or housing codes which the city or county, in the exercise of reasonable discretion believes constitutes a threat to the public health, safety or welfare, the city or county in addition to any other remedies available to it may apply to a court of competent jurisdiction for the appointment of a receiver to perform an abatement.
(2) At least 60 days prior to the filing of an application for appointment of a receiver pursuant to ORS 105.420 to 105.455, the city or county shall give written notice by regular mail to all interested parties of its intent to file the application and information relative to:
(a) The identity of the property;
(b) The violations of the building or housing codes giving rise to the application for the receiver;
(c) The name, address and telephone number of the person or department where additional information can be obtained concerning violations and their remedy; and
(d) The city or county which may seek the appointment of a receiver pursuant to ORS 105.420 to 105.455 unless action is taken within 60 days by an interested party.
(3) A city or county may not apply for the appointment of a receiver pursuant to ORS 105.420 to 105.455 if an interested party has commenced and is then prosecuting in a timely fashion an action or other judicial or nonjudicial proceeding to foreclose a security interest on the property, or to obtain specific performance of or forfeit the purchaser’s interest in under a land sale contract.
(4) Notice of the application for the appointment of a receiver pursuant to ORS 105.420 to 105.455 shall be served on all interested parties.
(5) If, following the application for appointment of a receiver, one or more of the interested parties elects to correct the conditions at the property giving rise to the city’s or county’s application for the appointment of a receiver, the party or parties shall be required to post security in an amount and character as the court deems appropriate to insure timely performance of all work necessary to make corrections, as well as such other conditions as the court deems appropriate to effect the timely completion of the corrections by the interested party or parties.
(6) In the event that no interested party elects to act pursuant to subsection (5) of this section or fails to timely perform work undertaken pursuant to subsection (5) of this section, the court shall make a determination that the property is an unsafe or insanitary condition and appoint a receiver to complete the abatement.
(7) A receiver may be any one of the following:
(a) A housing authority organized under the terms of ORS 456.055 to 456.235;
(b) An urban renewal agency organized under the terms of ORS 457.035 to 457.320;
(c) A private not-for-profit corporation, the primary purpose of which is the improvement of housing conditions within the city or county; or
(d) A city or county agency, bureau or similar subdivision designated by the city or county as being responsible for the rehabilitation of property.
(8) A receiver appointed by the court pursuant to ORS 105.420 to 105.455 shall not be required to give security or bond of any sort prior to appointment. [1989 c.649 §4; 1995 c.79 §34]
105.435 Authority of receiver; financing agreements; fee; abatement work exempt from public contracting law. (1) A receiver appointed by the court, pursuant to ORS 105.420 to 105.455, shall have the authority to do any or all of the following unless specifically limited by the court:
(a) Take possession and control of the property including the right to enter, modify and terminate tenancies pursuant to ORS 105.105 to 105.161 and to charge and collect rents derived therefrom, applying said sum to the costs incurred due to the abatement and receivership;
(b) Negotiate contracts and pay all expenses associated with the operation and conservation of the property including, but not limited to, all utility, fuel, custodial, repair or insurance costs;
(c) Pay all accrued property taxes, penalties, assessments and other charges imposed on the property by a unit of government as well as any accruing charge of like nature accruing during the pendency of the receivership;
(d) Dispose of any or all abandoned personal property found at the structure; and
(e) Enter into contracts and pay for the performance of any work necessary to complete the abatement.
(2) In addition to the powers set forth in subsection (1) of this section, the receiver may, under such terms and condition as a court shall allow, enter into financing agreements with public or private lenders and encumber the property therewith so as to have moneys available to correct the conditions at the property giving rise to the abatement.
(3) A receiver may charge an administrative fee at an hourly rate approved by the court or at a rate of 15 percent of the total cost of the abatement, whichever the court deems more appropriate.
(4) All abatement work done under ORS 105.420 to 105.455 is exempt from the public contracting statutes set forth in ORS 279C.005, 279C.100 to 279C.125 and 279C.300 to 279C.470 and ORS chapters 279A and 279B, except ORS 279A.125, 279A.250 to 279A.290 and 279B.235. [1989 c.649 §§5,6; 2003 c.794 §196]
105.440 Review of abatement expenditures by court; lien for unpaid expenses. (1) All moneys expended and all costs and obligations incurred by the receiver in performing the abatement shall be reviewed by the court for reasonableness and their necessity in performing the abatement. To the extent that the court finds the moneys, costs or obligations, or any combination thereof, to be reasonable and necessary, it shall issue an order reciting this fact as well as the amount found to be reasonable and necessary.
(2) If the costs and obligations incurred due to the abatement have not been paid, the order of the court shall be filed with the county recorder within 60 days of its filing with the court and shall thereafter constitute a lien on the property. [1989 c.649 §7]
105.445 Effect on purchase money security interest of lien for unpaid abatement expenses. (1) As used in this section, “purchase money security interest” means:
(a) The interest of a vendor under a land sale contract pertaining to the property if the contract was recorded prior to the issuance of the notice under ORS 105.430 (2);
(b) The interest of a mortgagee under a purchase money mortgage if the mortgage was recorded prior to the issuance of the notice under ORS 105.430 (2); or
(c) The interest of a beneficiary under a purchase money trust deed if the trust deed was recorded prior to the issuance of the notice under ORS 105.430 (2).
(2) Notwithstanding any other provision of law or any purchase money security interest, the issuance of the notice under ORS 105.430 (2) shall constitute a default under the purchase money security interest, and if the violations of the building or housing codes listed in the notice are not corrected within 30 days after the mailing of the notice, the vendor, mortgagee or beneficiary under the purchase money security interest may commence proceedings to exercise the remedies set forth in the purchase money security interest.
(3) A lien created by ORS 105.440 (2) shall be prior and superior to any purchase money security interest in the property if:
(a) The city or county gave the holder of the purchase money security interest and any vendee, mortgagor or grantor under such purchase money security interest the notice required under ORS 105.430 (2); and
(b) The holder of the purchase money security interest has not, prior to the appointment of a receiver under ORS 105.430 (6), initiated proceedings or taken other action to foreclose the purchase money security interest or to otherwise gain possession of the property.
(4) A lien created under ORS 105.440 (2) shall, except for property tax liens, assessment liens, liens created by ORS 87.352 to 87.362 and purchase money security interests not covered by subsection (3) of this section, be prior and superior to all other liens, mortgages and encumbrances against the property upon which it is imposed without regard to whether the other liens, mortgages or encumbrances attached to the property before or after the lien created by ORS 105.440 (2) attached. [1989 c.649 §8]
105.450 Termination of receivership. The receivership authorized pursuant to the terms of ORS 105.420 to 105.455 shall terminate only by an order of the court after a showing by an interested party or the receiver that:
(1) The abatement has been completed;
(2) The costs and obligations incurred due to the abatement have been paid by an interested party or a lien has been filed pursuant to ORS 105.440; and
(3) The interested party will manage the property in conformance with applicable housing codes. [1989 c.649 §9]
105.455 Short title. ORS 105.420 to 105.430 and 105.455 may be cited as the Oregon Housing Receivership Act. [1989 c.649 §1]
SELLER’S PROPERTY DISCLOSURE STATEMENT
105.462 Definitions for ORS 105.462 to 105.490. For purposes of ORS 105.462 to 105.490:
(1) “Financial institution” has the meaning given that term in ORS 706.008. “Financial institution” includes a:
(a) Trust company, as that term is defined in ORS 706.008;
(b) Mortgage banker, as that term is defined in ORS 86A.100;
(c) Mortgage broker, as that term is defined in ORS 86A.100; 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]
105.463 Preemptive effect of ORS 105.464. ORS 105.464 preempts any law, rule, regulation, code or ordinance of the political subdivisions of this state including, but not limited to, the Lane Regional Air Protection Agency regarding the disclosure of solid fuel burning devices, as defined in ORS 468A.485, in connection with a written offer to purchase real property in this state for which a seller’s property disclosure statement is required under ORS 105.465 and 105.470. [2009 c.387 §17]
105.464 Form of seller’s property disclosure statement. A seller’s property disclosure statement must be in substantially the following form:
______________________________________________________________________________
If required under ORS 105.465, a seller shall deliver in substantially the following form the seller’s property disclosure statement to each buyer who makes a written offer to purchase real property in this state:
______________________________________________________________________________
INSTRUCTIONS TO THE SELLER
Please complete the following form. Do not leave any spaces blank. Please refer to the line number(s) of the question(s) when you provide your explanation(s). If you are not claiming an exclusion or refusing to provide the form under ORS 105.475 (4), you should date and sign each page of this disclosure statement and each attachment.
Each seller of residential property described in ORS 105.465 must deliver this form to each buyer who makes a written offer to purchase. Under ORS 105.475 (4), refusal to provide this form gives the buyer the right to revoke their offer at any time prior to closing the transaction. Use only the section(s) of the form that apply to the transaction for which the form is used. If you are claiming an exclusion under ORS 105.470, fill out only Section 1.
An exclusion may be claimed only if the seller qualifies for the exclusion under the law. If not excluded, the seller must disclose the condition of the property or the buyer may revoke their offer to purchase anytime prior to closing the transaction. Questions regarding the legal consequences of the seller’s choice should be directed to a qualified attorney.
______________________________________________________________________________
(DO NOT FILL OUT THIS SECTION UNLESS YOU ARE CLAIMING AN EXCLUSION UNDER ORS 105.470)
Section 1. EXCLUSION FROM ORS 105.462 TO 105.490:
You may claim an exclusion under ORS 105.470 only if you qualify under the statute. If you are not claiming an exclusion, you must fill out Section 2 of this form completely.
Initial only the exclusion you wish to claim.
_____ This is the first sale of a dwelling never occupied. The dwelling is constructed or installed under building or installation permit(s) #_____, issued by ________.
_____ This sale is by a financial institution that acquired the property as custodian, agent or trustee, or by foreclosure or deed in lieu of foreclosure.
_____ The seller is a court appointed receiver, personal representative, trustee, conservator or guardian.
_____ This sale or transfer is by a governmental agency.
______________________
Signature(s) of Seller claiming exclusion
Date ________
______________________
Buyer(s) to acknowledge Seller’s claim
Date ________
______________________________________________________________________________