Chapter 105 — Property
Rights
2011 EDITION
PROPERTY RIGHTS
PROPERTY RIGHTS AND TRANSACTIONS
ACTIONS FOR RECOVERY OF REAL PROPERTY
105.005 Right
of action; recovery; damages
105.010 Contents
of complaint
105.015 Answer
105.020 Substitution
of landlord for tenant
105.025 Verdict
105.030 Damages
for withholding; setoff for improvements
105.035 Judgment
when plaintiff’s right to possession expires
105.040 Order
to make survey
105.045 Action
not prejudiced by alienation by person in possession
105.050 Cotenant
shall prove ouster
105.055 Conclusiveness
of judgment
105.060 Effect
of new trial on plaintiff’s possession
105.070 Rights
of donee under Donation Law
105.075 Notice
to quit; action to recover possession not affected by forcible entry or wrongful
detainer
105.080 Reimbursement
of tenants in common obtaining possession; lien
FORCIBLE ENTRY AND WRONGFUL DETAINER
105.105 Entry
to be lawful and peaceable only
105.110 Action
for forcible entry or wrongful detainer
105.111 Stay
of eviction for state service member
105.112 Action
by tenant to recover personal property; forms
105.113 Form
of summons
105.115 Causes
of unlawful holding by force; action for return of possession
105.120 Notice
necessary to maintain action in certain cases; waiver of notice; effect of
advance payments of rent
105.121 Forms
in action for possession of group recovery home; limitation on issues; attorney
fees
105.123 Complaint
105.124 Form
of complaint if ORS chapter 90 applies
105.126 Form
of complaint if ORS chapter 90 does not apply
105.128 Landlord
action to remove perpetrator of domestic violence, sexual assault or stalking
from possession of dwelling unit; retention of possession by victim
105.130 How
action conducted; fees
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 Penalty
for intentional violation of restraining order
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
105.668 Immunity
from liability for injury or property damage arising from use of trail or
structures in public easement or right of way
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 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
RADON HAZARDS AND METHODS FOR TESTING
AND MITIGATION
105.848 Radon
information for potential buyers of one and two family dwellings
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
XERISCAPING COMMERCIAL OR INDUSTRIAL
PROPERTY
105.980 Xeriscaping
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 Plaintiff(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 contact the Oregon State Bar’s Lawyer Referral
Service online at www.oregonstatebar.org or by calling 503-684-3763 (in the Portland
metropolitan area) or toll-free elsewhere 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; 2011 c.398 §4]
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,
91.122 or 91.130.
(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
[2009 c.569 §1; renumbered 91.122 in 2011]
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(s)
______________________________________________________________________________
(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 Plaintiff(s)
______________________________________________________________________________
(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.
___ Notice to bona fide tenants after
foreclosure sale or termination of
fixed term tenancy after foreclosure
sale. ORS 86.755 (6)(c).
___ 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; 2011 c.510 §3]
Note:
Section 8, chapter 510, Oregon Laws 2011, provides:
Sec.
8. Notwithstanding the amendments to ORS
105.124 and 105.126 by sections 3 and 4 of this 2011 Act, for the purpose of
exhausting existing supplies of the complaint forms modified pursuant to the
amendments to ORS 105.124 and 105.126 by sections 3 and 4 of this 2011 Act,
complaint forms satisfying the requirements of ORS 105.124 or 105.126, as in
effect on January 2, 2011, may be used until January 2, 2012. [2011 c.510 §8]
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)
_____ Notice to bona fide tenants after
foreclosure sale or
termination of
fixed term tenancy after
foreclosure
sale. ORS 86.755 (6)(c).
_____ 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; 2011 c.510 §4]
Note:
See note under 105.124.
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. (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 $75;
(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) The court shall collect a filing fee
of $75 from a defendant that demands a trial under this section.
(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) 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; 2011 c.595 §55]
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