71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 2031
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Revenue
Committee for Oregon Association of County Tax Collectors)
CHAPTER ................
AN ACT
Relating to abandoned personal property; creating new provisions;
and amending ORS 90.425 and 90.675.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 90.425 is amended to read:
90.425. (1) As used in this section:
(a) 'Current market value' means the amount in cash, as
determined by the county assessor, that could reasonably be
expected to be paid for a manufactured dwelling or floating home
by an informed buyer to an informed seller, each acting without
compulsion in an arm's length transaction occurring on the
assessment date for the tax year or on the date of a subsequent
reappraisal by the county assessor.
(b) 'Dispose of the personal property' means that, if
reasonably appropriate, the landlord may throw away the property
or may give it without consideration to a nonprofit organization
or to a person unrelated to the landlord. The landlord may not
retain the property for personal use or benefit.
(c) 'Goods' includes those goods left inside a recreational
vehicle, manufactured dwelling or floating home or left upon the
rental space outside a recreational vehicle, manufactured
dwelling or floating home, whether the recreational vehicle,
dwelling or home is located inside or outside of a facility.
(d) 'Lienholder' means any lienholder of an abandoned
recreational vehicle, manufactured dwelling or floating home, if
the lien is of record or the lienholder is actually known to the
landlord.
(e) 'Owner' means any owner of an abandoned recreational
vehicle, manufactured dwelling or floating home, if different
from the tenant and either of record or actually known to the
landlord.
(f) 'Personal property' means goods, vehicles and recreational
vehicles and includes manufactured dwellings and floating homes
not located in a facility. 'Personal property ' does not include
manufactured dwellings and floating homes located in a facility
and therefore subject to being stored, sold or disposed of as
provided under ORS 90.675.
(2) A landlord shall not store, sell or dispose of abandoned
personal property except as provided by this section. This
section governs the rights and obligations of landlords, tenants
and any lienholders or owners in any personal property abandoned
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or left upon the premises by the tenant or any lienholder or
owner in the following circumstances:
(a) The tenancy has ended by termination or expiration of a
rental agreement or by relinquishment or abandonment of the
premises and the landlord reasonably believes under all the
circumstances that the tenant has left the personal property upon
the premises with no intention of asserting any further claim to
the premises or to the personal property;
(b) The tenant has been absent from the premises continuously
for seven days after termination of a tenancy by a court order
that has not been executed; or
(c) The landlord elects to remove the personal property
pursuant to ORS 105.165.
(3) Prior to selling or disposing of the tenant's personal
property under this section, the landlord must give a written
notice to the tenant which shall be:
(a) Personally delivered to the tenant; or
(b) Sent by first class mail addressed and mailed to the tenant
at:
(A) The premises;
(B) Any post-office box held by the tenant and actually known
to the landlord; and
(C) The most recent forwarding address if provided by the
tenant or actually known to the landlord.
(4)(a) In addition to the notice required by subsection (3) of
this section, in the case of an abandoned recreational vehicle,
manufactured dwelling or floating home, a landlord shall also
give a copy of the notice described in subsection (3) of this
section to:
(A) Any lienholder of the recreational vehicle, manufactured
dwelling or floating home;
(B) Any owner of the recreational vehicle, manufactured
dwelling or floating home;
(C) The tax collector of the county where the manufactured
dwelling or floating home is located; and
(D) The assessor of the county where the manufactured dwelling
or floating home is located.
(b) The landlord shall give the notice copy required by this
subsection by personal delivery or first class mail, except that
for any lienholder, mail service shall be by first class mail
with certificate of mailing.
(5) The notice required under subsection (3) of this section
shall state that:
(a) The personal property left upon the premises is considered
abandoned;
(b) The tenant or any lienholder or owner must contact the
landlord by a specified date, as provided in subsection (6) of
this section, to arrange for the removal of the abandoned
personal property;
(c) The personal property is stored at a place of safekeeping,
except that if the property includes a manufactured dwelling or
floating home, the dwelling or home shall be stored on the rented
space;
(d) The tenant or any lienholder or owner, except as provided
by subsection (17) of this section, may arrange for removal of
the personal property by contacting the landlord at a described
telephone number or address on or before the specified date;
(e) The landlord shall make the personal property available for
removal by the tenant or any lienholder or owner, except as
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provided by subsection (17) of this section, by appointment at
reasonable times;
(f) If the personal property is considered to be abandoned
pursuant to subsection (2)(a) or (b) of this section, the
landlord may require payment of removal and storage charges, as
provided by subsection (7)(d) of this section, prior to releasing
the personal property to the tenant or any lienholder or owner;
(g) If the personal property is considered to be abandoned
pursuant to subsection (2)(c) of this section, the landlord shall
not require payment of storage charges prior to releasing the
personal property;
(h) If the tenant or any lienholder or owner fails to contact
the landlord by the specified date, or after that contact, fails
to remove the personal property within 30 days for recreational
vehicles, manufactured dwellings and floating homes or 15 days
for all other personal property, the landlord may sell or dispose
of the personal property. If the landlord reasonably believes
that the personal property will be eligible for disposal pursuant
to subsection (10)(b) of this section and the landlord intends to
dispose of the property if it is not claimed, the notice shall
state that belief and intent; and
(i) If the personal property includes a recreational vehicle,
manufactured dwelling or floating home and if applicable, there
is a lienholder or owner that has a right to claim the
recreational vehicle, dwelling or home, except as provided by
subsection (17) of this section.
(6) For purposes of subsection (5) of this section, the
specified date by which a tenant, lienholder or owner must
contact a landlord to arrange for the disposition of abandoned
personal property shall be:
(a) For abandoned recreational vehicles, manufactured dwellings
or floating homes, not less than 45 days after personal delivery
or first class mailing of the notice; or
(b) For all other abandoned personal property, not less than
five days after personal delivery or eight days after first class
mailing of the notice.
(7) After notifying the tenant as required by subsection (3) of
this section, the landlord:
(a) Shall store any abandoned manufactured dwelling or floating
home on the rented space and shall exercise reasonable care for
the dwelling or home;
(b) Shall store all other abandoned personal property of the
tenant, including goods left inside a recreational vehicle,
manufactured dwelling or floating home or left upon the rented
space outside a recreational vehicle, dwelling or home, in a
place of safekeeping and shall exercise reasonable care for the
personal property, except that the landlord may:
(A) Promptly dispose of rotting food; and
(B) Allow an animal control agency to remove any abandoned pets
or livestock. If an animal control agency will not remove the
abandoned pets or livestock, the landlord shall exercise
reasonable care for the animals given all the circumstances,
including the type and condition of the animals, and may give the
animals to an agency that is willing and able to care for the
animals, such as a humane society or similar organization;
(c) Except for manufactured dwellings and floating homes, may
store the abandoned personal property at the dwelling unit, move
and store it elsewhere on the premises or move and store it at a
commercial storage company or other place of safekeeping; and
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(d) Shall be entitled to reasonable or actual storage charges
and costs incidental to storage or disposal, including any cost
of removal to a place of storage. In the case of an abandoned
manufactured dwelling or floating home, the storage charge shall
be no greater than the monthly space rent last payable by the
tenant.
(8) If a tenant, lienholder or owner, upon the receipt of the
notice provided by subsection (3) or (4) of this section or
otherwise, responds by actual notice to the landlord on or before
the specified date in the landlord's notice that the tenant,
lienholder or owner intends to remove the personal property from
the premises or from the place of safekeeping, the landlord must
make that personal property available for removal by the tenant,
lienholder or owner by appointment at reasonable times during the
next 15 days or, in the case of a recreational vehicle,
manufactured dwelling or floating home, 30 days, subject to
subsection (17) of this section. If the personal property is
considered to be abandoned pursuant to subsection (2)(a) or (b)
of this section, but not pursuant to subsection (2)(c) of this
section, the landlord may require payment of removal and storage
charges, as provided in subsection (7)(d) of this section, prior
to allowing the tenant, lienholder or owner to remove the
personal property. Acceptance by a landlord of such payment shall
not operate to create or reinstate a tenancy or create a waiver
pursuant to ORS 90.415.
(9) Except as provided in subsections (17) to (19) of this
section, if the tenant, lienholder or owner of a recreational
vehicle, manufactured dwelling or floating home does not respond
within the time provided by the landlord's notice, or the tenant,
lienholder or owner does not remove the personal property within
the time required by subsection (8) of this section or by any
date agreed to with the landlord, whichever is later, the
tenant's, lienholder's or owner's personal property shall be
conclusively presumed to be abandoned. The tenant and any
lienholder or owner that have been given notice pursuant to
subsection (3) or (4) of this section shall, except with regard
to the distribution of sale proceeds pursuant to subsection (12)
of this section, have no further right, title or interest to the
personal property and may not claim or sell the property.
(10) If the personal property is presumed to be abandoned under
subsection (9) of this section, the landlord then may:
(a) Sell the personal property at a public or private sale,
provided that prior to the sale of a recreational vehicle,
manufactured dwelling or floating home:
(A) The landlord may seek to transfer the certificate of title
and registration to the personal property by complying with the
requirements of the appropriate state agency; and
(B) The landlord shall:
(i) Place a notice in a newspaper of general circulation in the
county in which the recreational vehicle, manufactured dwelling
or floating home is located. The notice shall state:
(I) That the recreational vehicle, manufactured dwelling or
floating home is abandoned;
(II) The tenant's and owner's name, if of record or actually
known to the landlord;
(III) The address and any space number where the recreational
vehicle, manufactured dwelling or floating home is located, and
if actually known to the landlord, the plate, registration or
other identification number as noted on the certificate of title;
(IV) Whether the sale is by private bidding or public auction;
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(V) Whether the landlord is accepting sealed bids and, if so,
the last date on which bids will be accepted; and
(VI) The name and telephone number of the person to contact to
inspect the recreational vehicle, manufactured dwelling or
floating home;
(ii) At a reasonable time prior to the sale, give a copy of the
notice required by sub-subparagraph (i) of this subparagraph to
the tenant and to any lienholder and owner, by personal delivery
or first class mail, except that for any lienholder, mail service
shall be by first class mail with certificate of mailing;
(iii) Obtain an affidavit of publication from the newspaper to
show that the notice required under sub-subparagraph (i) of this
subparagraph ran in the newspaper at least one day in each of two
consecutive weeks prior to the date scheduled for the sale or the
last date bids will be accepted; and
(iv) Obtain written proof from the county that all property
taxes on the manufactured dwelling or floating home have been
paid or, if not paid, that the county has authorized the sale,
with the sale proceeds to be distributed pursuant to subsection
(12) of this section;
(b) Destroy or otherwise dispose of the personal property if
the landlord determines that:
(A) For a manufactured dwelling or floating home, the current
market value of the property is { - $3,500 - } { + $8,000 + }
or less as determined by the county assessor; or
(B) For all other personal property, the reasonable current
fair market value is $500 or less or so low that the cost of
storage and conducting a public sale probably exceeds the amount
that would be realized from the sale; or
(c) Consistent with paragraphs (a) and (b) of this subsection,
sell certain items and destroy or otherwise dispose of the
remaining personal property.
(11)(a) A public or private sale authorized by this section
shall:
(A) For a recreational vehicle, manufactured dwelling or
floating home, be conducted consistent with the terms listed in
subsection (10)(a)(B)(i) of this section. Every aspect of the
sale including the method, manner, time, place and terms must be
commercially reasonable; or
(B) For all other personal property, be conducted under the
provisions of ORS 79.5040 (3).
(b) If there is no buyer at a sale of a manufactured dwelling
or floating home, the personal property shall be considered to be
worth { - $3,500 - } { + $8,000 + } or less, regardless of
current market value, and the landlord { - may - }
{ + shall + } destroy or otherwise dispose of the personal
property.
(12)(a) The landlord may deduct from the proceeds of the sale:
(A) The reasonable or actual cost of notice, storage and sale;
and
(B) Unpaid rent.
(b) If the sale was of a manufactured dwelling or floating
home, after deducting the amounts listed in paragraph (a) of this
subsection, the landlord shall remit the remaining proceeds, if
any, to the county tax collector to the extent of any unpaid
property taxes owed on the dwelling or home.
(c) If the sale was of a recreational vehicle, manufactured
dwelling or floating home, after deducting the amounts listed in
paragraphs (a) and (b) of this subsection, if applicable, the
landlord shall remit the remaining proceeds, if any, to any
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lienholder to the extent of any unpaid balance owed on the lien
on the recreational vehicle, dwelling or home.
(d) After deducting the amounts listed in paragraphs (a), (b)
and (c) of this subsection, if applicable, the landlord shall
remit to the tenant or owner the remaining proceeds, if any,
together with an itemized accounting.
(e) If the tenant or owner cannot after due diligence be found,
the remaining proceeds shall be deposited with the county
treasurer of the county in which the sale occurred, and if not
claimed within three years shall revert to the general fund of
the county available for general purposes.
(13) The county tax collector shall cancel all unpaid property
taxes owed on a manufactured dwelling or floating home, as
provided under ORS 311.790, { - if - } { + only under
circumstances described in paragraph (a), (b), (c) or (d) of this
subsection + }:
(a) The landlord disposes of the manufactured dwelling or
floating home after a determination described in subsection
(10)(b) of this section { - ; - } { + . + }
(b) There is no buyer of the manufactured dwelling or floating
home at a sale described under subsection (11) of this section
{ - ; or - } { + . + }
(c) { + (A) + } { - The proceeds of a sale described under
subsection (11) of this section are insufficient to - } { +
There is a buyer of the manufactured dwelling or floating home at
a sale described under subsection (11) of this section;
(B) The current market value of the manufactured dwelling or
floating home is $8,000 or less; and
(C) The proceeds of the sale are insufficient to + } satisfy
the unpaid property taxes owed on the dwelling or home after
distribution of the proceeds pursuant to subsection (12) of this
section.
{ + (d)(A) The landlord buys the manufactured dwelling or
floating home at a sale described under subsection (11) of this
section;
(B) The current market value of the manufactured dwelling or
floating home is more than $8,000;
(C) The proceeds of the sale are insufficient to satisfy the
unpaid property taxes owed on the manufactured dwelling or
floating home after distribution of the proceeds pursuant to
subsection (12) of this section; and
(D) The landlord disposes of the manufactured dwelling or
floating home. + }
(14) The landlord shall not be responsible for any loss to the
tenant, lienholder or owner resulting from storage of personal
property in compliance with this section unless the loss was
caused by the landlord's deliberate or negligent act. In the
event of a deliberate and malicious violation, the landlord shall
be liable for twice the actual damages sustained by the tenant,
lienholder or owner.
(15) Complete compliance in good faith with this section shall
constitute a complete defense in any action brought by a tenant,
lienholder or owner against a landlord for loss or damage to such
personal property disposed of pursuant to this section.
(16) If a landlord does not comply with this section:
(a) The tenant shall be relieved of any liability for damage to
the premises caused by conduct that was not deliberate,
intentional or grossly negligent and for unpaid rent and may
recover from the landlord up to twice the actual damages
sustained by the tenant;
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(b) A lienholder or owner aggrieved by the noncompliance may
recover from the landlord the actual damages sustained by the
lienholder or owner. ORS 90.255 does not authorize an award of
attorney fees to the prevailing party in any action arising under
this paragraph; and
(c) A county tax collector aggrieved by the noncompliance may
recover from the landlord the actual damages sustained by the tax
collector, if the noncompliance is part of an effort by the
landlord to defraud the tax collector. ORS 90.255 does not
authorize an award of attorney fees to the prevailing party in
any action arising under this paragraph.
(17) In the case of an abandoned recreational vehicle,
manufactured dwelling or floating home, the provisions of this
section regarding the rights and responsibilities of a tenant to
the abandoned vehicle, dwelling or home shall also apply to any
lienholder except that the lienholder shall not sell or remove
the vehicle, dwelling or home unless:
(a) The lienholder has foreclosed its lien on the recreational
vehicle, manufactured dwelling or floating home;
(b) The tenant has waived the tenant's rights under this
section pursuant to subsection (25) of this section; or
(c) The notice and response periods provided by subsections (6)
and (8) of this section have expired.
(18) In the case of an abandoned manufactured dwelling or
floating home but not including a dwelling or home abandoned
following a termination pursuant to ORS 90.429 and except as
provided by subsection (21)(d) and (e) of this section, if a
lienholder makes a timely response to a notice of abandoned
personal property and so requests, a landlord shall enter into a
written agreement with the lienholder providing that the dwelling
or home shall not be sold or disposed of by the landlord for up
to 12 months, so long as the lienholder makes timely periodic
payment of all future storage charges as provided by subsection
(7)(d) of this section and maintains the dwelling or home and the
rented space on which it is stored. The lienholder's right to
such an agreement shall arise upon the failure of the tenant,
owner or, in the case of a deceased tenant, the personal
representative, designated person, heir or devisee to remove or
sell the dwelling or home within the allotted time.
(19) During the term of an agreement described under subsection
(18) of this section, the lienholder shall have the right to
remove or sell the property, subject to the provisions of its
lien. Selling the property includes a sale to a purchaser who
wishes to leave the dwelling or home on the rented space and
become a tenant, subject to any conditions previously agreed to
by the landlord and tenant regarding the landlord's approval of a
purchaser or, if there was no such agreement, any reasonable
conditions by the landlord regarding approval of any purchaser
who wishes to leave the dwelling or home on the rented space and
become a tenant. The landlord also may condition approval for
occupancy of any purchaser of the property upon payment of all
storage charges and maintenance costs. If the lienholder violates
the agreement, the landlord may terminate it upon 90 days'
written notice stating facts sufficient to notify the lienholder
of the reason for the termination. Unless the lienholder corrects
the violation within the notice period, the agreement shall
terminate as provided and the landlord may sell or dispose of the
dwelling or home without further notice to the lienholder.
(20) Upon termination of an agreement described under
subsection (18) of this section, unless the parties otherwise
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agree or the lienholder has sold or removed the manufactured
dwelling or floating home, the landlord may sell or dispose of
the property pursuant to this section without further notice to
the lienholder.
(21) If the personal property consists of an abandoned
manufactured dwelling or floating home and is considered
abandoned as a result of the death of a tenant who was the only
tenant and who owned the dwelling or home, the provisions of
subsections (1) to (20), (23), (24) and (26) of this section
shall apply, except as follows:
(a) The provisions of this section regarding the rights and
responsibilities of a tenant to the abandoned dwelling or home
shall apply to any personal representative named in a will or
appointed by a court to act for the deceased tenant or any person
designated in writing by the tenant to be contacted by the
landlord in the event of the tenant's death.
(b) The notice required by subsection (3) of this section shall
be:
(A) Sent by first class mail to the deceased tenant at the
premises; and
(B) Personally delivered or sent by first class mail to any
personal representative or designated person if actually known to
the landlord.
(c) The notice described in subsection (5) of this section
shall refer to any personal representative or designated person,
instead of the deceased tenant, and shall incorporate the
provisions of this subsection.
(d) If a personal representative, designated person or other
person entitled to possession of the property, such as an heir or
devisee, responds by actual notice to a landlord within the
45-day period provided by subsection (6) of this section and so
requests, the landlord shall enter into a written agreement with
the representative or person providing that the dwelling or home
shall not be sold or disposed of by the landlord for up to 90
days or until conclusion of any probate proceedings, whichever is
later, so long as the representative or person makes timely
periodic payment of all future storage charges as provided by
subsection (7)(d) of this section and maintains the dwelling or
home and the rented space on which it is stored. If such an
agreement is entered, the landlord shall not enter a similar
agreement with a lienholder pursuant to subsection (18) of this
section until the agreement with the personal representative or
designated person ends.
(e) During the term of an agreement described under paragraph
(d) of this subsection, the representative or person shall have
the right to remove or sell the dwelling or home, including a
sale to a purchaser or a transfer to an heir or devisee where the
purchaser, heir or devisee wishes to leave the dwelling or home
on the rented space and become a tenant, subject to any
conditions previously agreed to by the landlord and tenant
regarding the landlord's approval for occupancy of a purchaser,
heir or devisee or, if there was no such agreement, any
reasonable conditions by the landlord regarding approval for
occupancy of any purchaser, heir or devisee who wishes to leave
the dwelling or home on the rented space and become a tenant. The
landlord also may condition approval for occupancy of any
purchaser, heir or devisee of the dwelling or home upon payment
of all storage charges and maintenance costs. If the
representative or person violates the agreement, the landlord may
terminate it upon 30 days' written notice stating facts
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sufficient to notify the representative or person of the reason
for the termination. Unless the representative or person corrects
the violation within the notice period, the agreement shall
terminate as provided and the landlord may sell or dispose of the
dwelling or home without further notice to the representative or
person.
(22) Upon termination of an agreement described under
subsection (21)(d) of this section, unless the parties otherwise
agree or the representative or person has sold or removed the
manufactured dwelling or floating home, the landlord may sell or
dispose of the property pursuant to this section without further
notice to the representative or person.
(23) In the case of an abandoned recreational vehicle,
manufactured dwelling or floating home that is owned by someone
other than the tenant, the provisions of this section regarding
the rights and responsibilities of a tenant to the abandoned
vehicle, dwelling or home shall also apply to that owner, with
regard only to the vehicle, dwelling or home, and not to any
goods left inside or outside the vehicle, dwelling or home.
(24) In the case of an abandoned motor vehicle, the procedure
authorized by ORS 98.830 and 98.835 for removal of abandoned
motor vehicles from private property may be used by a landlord as
an alternative to the procedures required in this section.
(25) Except for personal property that is subject to subsection
(21) of this section, a landlord may sell or dispose of a
tenant's abandoned personal property without complying with the
provisions of this section if, after termination of the tenancy
or no more than seven days prior to the termination of the
tenancy, the landlord and the tenant and, in the case of a
recreational vehicle, manufactured dwelling or floating home, any
lienholder and owner so agree in a writing entered into in good
faith. A landlord shall not, as part of a rental agreement,
require a tenant or any lienholder or owner to waive any right
provided by this section.
(26) Until personal property is conclusively presumed to be
abandoned under subsection (9) of this section, a landlord shall
not have a lien pursuant to ORS 87.152 for storing the personal
property.
SECTION 2. ORS 90.675 is amended to read:
90.675. (1) As used in this section:
(a) 'Current market value' means the amount in cash, as
determined by the county assessor, that could reasonably be
expected to be paid for personal property by an informed buyer to
an informed seller, each acting without compulsion in an
arms-length transaction occurring on the assessment date for the
tax year or on the date of a subsequent reappraisal by the county
assessor.
(b) 'Dispose of the personal property' means that, if
reasonably appropriate, the landlord may throw away the property
or may give it without consideration to a nonprofit organization
or to a person unrelated to the landlord. The landlord may not
retain the property for personal use or benefit.
(c) 'Lienholder' means any lienholder of abandoned personal
property, if the lien is of record or the lienholder is actually
known to the landlord.
(d) 'Personal property' means only a manufactured dwelling or
floating home located in a facility. 'Personal property' does not
include goods left inside a manufactured dwelling or floating
home or left upon a rented space and subject to disposition under
ORS 90.425.
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(2) A landlord shall not store, sell or dispose of abandoned
personal property except as provided by this section. This
section governs the rights and obligations of landlords, tenants
and any lienholders in any personal property abandoned or left
upon the premises by the tenant or any lienholder in the
following circumstances:
(a) The tenancy has ended by termination or expiration of a
rental agreement or by relinquishment or abandonment of the
premises and the landlord reasonably believes under all the
circumstances that the tenant has left the personal property upon
the premises with no intention of asserting any further claim to
the premises or to the personal property;
(b) The tenant has been absent from the premises continuously
for seven days after termination of a tenancy by a court order
that has not been executed; or
(c) The landlord elects to remove the personal property
pursuant to ORS 105.165.
(3) Prior to selling or disposing of the tenant's personal
property under this section, the landlord must give a written
notice to the tenant which shall be:
(a) Personally delivered to the tenant; or
(b) Sent by first class mail addressed and mailed to the tenant
at:
(A) The premises;
(B) Any post-office box held by the tenant and actually known
to the landlord; and
(C) The most recent forwarding address if provided by the
tenant or actually known to the landlord.
(4)(a) A landlord shall also give a copy of the notice
described in subsection (3) of this section to:
(A) Any lienholder of the personal property;
(B) The tax collector of the county where the personal property
is located; and
(C) The assessor of the county where the personal property is
located.
(b) The landlord shall give the notice copy required by this
subsection by personal delivery or first class mail, except that
for any lienholder, mail service shall be by first class mail
with certificate of mailing.
(5) The notice required under subsection (3) of this section
shall state that:
(a) The personal property left upon the premises is considered
abandoned;
(b) The tenant or any lienholder must contact the landlord by a
specified date, as provided in subsection (6) of this section, to
arrange for the removal of the abandoned personal property;
(c) The personal property is stored on the rented space;
(d) The tenant or any lienholder, except as provided by
subsection (17) of this section, may arrange for removal of the
personal property by contacting the landlord at a described
telephone number or address on or before the specified date;
(e) The landlord shall make the personal property available for
removal by the tenant or any lienholder, except as provided by
subsection (17) of this section, by appointment at reasonable
times;
(f) If the personal property is considered to be abandoned
pursuant to subsection (2)(a) or (b) of this section, the
landlord may require payment of storage charges, as provided by
subsection (7)(b) of this section, prior to releasing the
personal property to the tenant or any lienholder;
Enrolled House Bill 2031 (HB 2031-B) Page 10
(g) If the personal property is considered to be abandoned
pursuant to subsection (2)(c) of this section, the landlord shall
not require payment of storage charges prior to releasing the
personal property;
(h) If the tenant or any lienholder fails to contact the
landlord by the specified date or fails to remove the personal
property within 30 days after that contact, the landlord may sell
or dispose of the personal property. If the landlord reasonably
believes the county assessor will determine that the current
market value of the personal property is { - $3,500 - }
{ + $8,000 + } or less, and the landlord intends to dispose of
the property if it is not claimed, the notice shall state that
belief and intent; and
(i) If applicable, there is a lienholder that has a right to
claim the personal property, except as provided by subsection
(17) of this section.
(6) For purposes of subsection (5) of this section, the
specified date by which a tenant or lienholder must contact a
landlord to arrange for the disposition of abandoned personal
property shall be not less than 45 days after personal delivery
or first class mailing of the notice.
(7) After notifying the tenant as required by subsection (3) of
this section, the landlord:
(a) Shall store the abandoned personal property of the tenant
on the rented space and shall exercise reasonable care for the
personal property; and
(b) Shall be entitled to reasonable or actual storage charges
and costs incidental to storage or disposal. The storage charge
shall be no greater than the monthly space rent last payable by
the tenant.
(8) If a tenant or lienholder, upon the receipt of the notice
provided by subsection (3) or (4) of this section or otherwise,
responds by actual notice to the landlord on or before the
specified date in the landlord's notice that the tenant or
lienholder intends to remove the personal property from the
premises, the landlord must make that personal property available
for removal by the tenant or lienholder by appointment at
reasonable times during the next 30 days, subject to subsection
(17) of this section. If the personal property is considered to
be abandoned pursuant to subsection (2)(a) or (b) of this
section, but not pursuant to subsection (2)(c) of this section,
the landlord may require payment of storage charges, as provided
in subsection (7)(b) of this section, prior to allowing the
tenant or lienholder to remove the personal property. Acceptance
by a landlord of such payment shall not operate to create or
reinstate a tenancy or create a waiver pursuant to ORS 90.415.
(9) Except as provided in subsections (17) to (19) of this
section, if the tenant or lienholder does not respond within the
time provided by the landlord's notice, or the tenant or
lienholder does not remove the personal property within 30 days
after responding to the landlord or by any date agreed to with
the landlord, whichever is later, the personal property shall be
conclusively presumed to be abandoned. The tenant and any
lienholder that have been given notice pursuant to subsection (3)
or (4) of this section shall, except with regard to the
distribution of sale proceeds pursuant to subsection (12) of this
section, have no further right, title or interest to the personal
property and may not claim or sell the property.
(10) If the personal property is presumed to be abandoned under
subsection (9) of this section, the landlord then may:
Enrolled House Bill 2031 (HB 2031-B) Page 11
(a) Sell the personal property at a public or private sale,
provided that prior to the sale:
(A) The landlord may seek to transfer the certificate of title
and registration to the personal property by complying with the
requirements of the appropriate state agency; and
(B) The landlord shall:
(i) Place a notice in a newspaper of general circulation in the
county in which the personal property is located. The notice
shall state:
(I) That the personal property is abandoned;
(II) The tenant's name;
(III) The address and any space number where the personal
property is located, and if actually known to the landlord, the
plate, registration or other identification number as noted on
the title;
(IV) Whether the sale is by private bidding or public auction;
(V) Whether the landlord is accepting sealed bids and, if so,
the last date on which bids will be accepted; and
(VI) The name and telephone number of the person to contact to
inspect the personal property;
(ii) At a reasonable time prior to the sale, give a copy of the
notice required by sub-subparagraph (i) of this subparagraph to
the tenant and to any lienholder, by personal delivery or first
class mail, except that for any lienholder, mail service shall be
by first class mail with certificate of mailing;
(iii) Obtain an affidavit of publication from the newspaper to
show that the notice required under sub-subparagraph (i) of this
subparagraph ran in the newspaper at least one day in each of two
consecutive weeks prior to the date scheduled for the sale or the
last date bids will be accepted; and
(iv) Obtain written proof from the county that all property
taxes on the personal property have been paid or, if not paid,
that the county has authorized the sale, with the sale proceeds
to be distributed pursuant to subsection (12) of this section; or
(b) Destroy or otherwise dispose of the personal property if
the landlord determines from the county assessor that the current
market value of the property is { - $3,500 - } { + $8,000 + }
or less.
(11)(a) A public or private sale authorized by this section
shall be conducted consistent with the terms listed in subsection
(10)(a)(B)(i) of this section. Every aspect of the sale including
the method, manner, time, place and terms must be commercially
reasonable.
(b) If there is no buyer at a sale described under paragraph
(a) of this subsection, the personal property shall be considered
to be worth { - $3,500 - } { + $8,000 + } or less, regardless
of current market value, and the landlord { - may - }
{ + shall + } destroy or otherwise dispose of the personal
property.
(12)(a) The landlord may deduct from the proceeds of the sale:
(A) The reasonable or actual cost of notice, storage and sale;
and
(B) Unpaid rent.
(b) After deducting the amounts listed in paragraph (a) of this
subsection, the landlord shall remit the remaining proceeds, if
any, to the county tax collector to the extent of any unpaid
property taxes owed on the dwelling or home.
(c) After deducting the amounts listed in paragraphs (a) and
(b) of this subsection, if applicable, the landlord shall remit
Enrolled House Bill 2031 (HB 2031-B) Page 12
the remaining proceeds, if any, to any lienholder to the extent
of any unpaid balance owed on the lien on the personal property.
(d) After deducting the amounts listed in paragraphs (a), (b)
and (c) of this subsection, if applicable, the landlord shall
remit to the tenant the remaining proceeds, if any, together with
an itemized accounting.
(e) If the tenant cannot after due diligence be found, the
remaining proceeds shall be deposited with the county treasurer
of the county in which the sale occurred, and if not claimed
within three years shall revert to the general fund of the county
available for general purposes.
(13) The county tax collector shall cancel all unpaid property
taxes as provided under ORS 311.790 { - if - } { + only under
circumstances described in paragraph (a), (b), (c) or (d) of this
subsection + }:
(a) The landlord disposes of the personal property after a
determination described in subsection (10)(b) of this section
{ - ; - } { + . + }
(b) There is no buyer of the personal property at a sale
described under subsection (11) of this section { - ; or - }
{ + . + }
{ - (c) The proceeds of a sale described under subsection
(11) of this section are insufficient to satisfy the unpaid
property taxes owed on the dwelling or home after distribution of
the proceeds pursuant to subsection (12) of this section. - }
{ + (c)(A) There is a buyer of the personal property at a
sale described under subsection (11) of this section;
(B) The current market value of the personal property is $8,000
or less; and
(C) The proceeds of the sale are insufficient to satisfy the
unpaid property taxes owed on the personal property after
distribution of the proceeds pursuant to subsection (12) of this
section.
(d)(A) The landlord buys the personal property at a sale
described under subsection (11) of this section;
(B) The current market value of the personal property is more
than $8,000;
(C) The proceeds of the sale are insufficient to satisfy the
unpaid property taxes owed on the personal property after
distribution of the proceeds pursuant to subsection (12) of this
section; and
(D) The landlord disposes of the personal property. + }
(14) The landlord shall not be responsible for any loss to the
tenant or lienholder resulting from storage of personal property
in compliance with this section unless the loss was caused by the
landlord's deliberate or negligent act. In the event of a
deliberate and malicious violation, the landlord shall be liable
for twice the actual damages sustained by the tenant or
lienholder.
(15) Complete compliance in good faith with this section shall
constitute a complete defense in any action brought by a tenant
or lienholder against a landlord for loss or damage to such
personal property disposed of pursuant to this section.
(16) If a landlord does not comply with this section:
(a) The tenant shall be relieved of any liability for damage to
the premises caused by conduct that was not deliberate,
intentional or grossly negligent and for unpaid rent and may
recover from the landlord up to twice the actual damages
sustained by the tenant;
Enrolled House Bill 2031 (HB 2031-B) Page 13
(b) A lienholder aggrieved by the noncompliance may recover
from the landlord the actual damages sustained by the lienholder.
ORS 90.255 does not authorize an award of attorney fees to the
prevailing party in any action arising under this paragraph; and
(c) A county tax collector aggrieved by the noncompliance may
recover from the landlord the actual damages sustained by the tax
collector, if the noncompliance is part of an effort by the
landlord to defraud the tax collector. ORS 90.255 does not
authorize an award of attorney fees to the prevailing party in
any action arising under this paragraph.
(17) The provisions of this section regarding the rights and
responsibilities of a tenant to the abandoned personal property
shall also apply to any lienholder, except that the lienholder
shall not sell or remove the dwelling or home unless:
(a) The lienholder has foreclosed its lien on the manufactured
dwelling or floating home;
(b) The tenant has waived the tenant's rights under this
section pursuant to subsection (23) of this section; or
(c) The notice and response periods provided by subsections (6)
and (8) of this section have expired.
(18) Except as provided by subsection (21)(d) and (e) of this
section, if a lienholder makes a timely response to a notice of
abandoned personal property and so requests, a landlord shall
enter into a written agreement with the lienholder providing that
the personal property shall not be sold or disposed of by the
landlord for up to 12 months, so long as the lienholder makes
timely periodic payment of all future storage charges as provided
by subsection (7)(b) of this section and maintains the property
and the rented space on which it is stored. The lienholder's
right to such an agreement shall arise upon the failure of the
tenant or, in the case of a deceased tenant, the personal
representative, designated person, heir or devisee to remove or
sell the dwelling or home within the allotted time.
(19) During the term of an agreement described under subsection
(18) of this section, the lienholder shall have the right to
remove or sell the property, subject to the provisions of its
lien. Selling the property includes a sale to a purchaser who
wishes to leave the property on the rented space and become a
tenant, subject to the provisions of ORS 90.680. The landlord may
condition approval for occupancy of any purchaser of the property
upon payment of all storage charges and maintenance costs. If the
lienholder violates the agreement, the landlord may terminate it
upon 90 days' written notice stating facts sufficient to notify
the lienholder of the reason for the termination. Unless the
lienholder corrects the violation within the notice period, the
agreement shall terminate as provided and the landlord may sell
or dispose of the property without further notice to the
lienholder.
(20) Upon termination of an agreement described under
subsection (18) of this section, unless the parties otherwise
agree or the lienholder has sold or removed the property, the
landlord may sell or dispose of the property pursuant to this
section without further notice to the lienholder.
(21) If the personal property is considered abandoned as a
result of the death of a tenant who was the only tenant, the
provisions of subsections (1) to (20) of this section shall
apply, except as follows:
(a) The provisions of this section regarding the rights and
responsibilities of a tenant to the abandoned personal property
shall apply to any personal representative named in a will or
Enrolled House Bill 2031 (HB 2031-B) Page 14
appointed by a court to act for the deceased tenant or any person
designated in writing by the tenant to be contacted by the
landlord in the event of the tenant's death.
(b) The notice required by subsection (3) of this section shall
be:
(A) Sent by first class mail to the deceased tenant at the
premises; and
(B) Personally delivered or sent by first class mail to any
personal representative or designated person if actually known to
the landlord.
(c) The notice described in subsection (5) of this section
shall refer to any personal representative or designated person,
instead of the deceased tenant, and shall incorporate the
provisions of this subsection.
(d) If a personal representative, designated person or other
person entitled to possession of the property, such as an heir or
devisee, responds by actual notice to a landlord within the
45-day period provided by subsection (6) of this section and so
requests, the landlord shall enter into a written agreement with
the representative or person providing that the personal property
shall not be sold or disposed of by the landlord for up to 90
days or until conclusion of any probate proceedings, whichever is
later, so long as the representative or person makes timely
periodic payment of all future storage charges as provided by
subsection (7)(b) of this section and maintains the property and
the rented space on which it is stored. If such an agreement is
entered, the landlord shall not enter a similar agreement with a
lienholder pursuant to subsection (18) of this section until the
agreement with the personal representative or designated person
ends.
(e) During the term of an agreement described under paragraph
(d) of this subsection, the representative or person shall have
the right to remove or sell the property, including a sale to a
purchaser or a transfer to an heir or devisee where the
purchaser, heir or devisee wishes to leave the property on the
rented space and become a tenant, subject to the provisions of
ORS 90.680. The landlord also may condition approval for
occupancy of any purchaser, heir or devisee of the property upon
payment of all storage charges and maintenance costs. If the
representative or person violates the agreement, the landlord may
terminate it upon 30 days' written notice stating facts
sufficient to notify the representative or person of the reason
for the termination. Unless the representative or person corrects
the violation within the notice period, the agreement shall
terminate as provided and the landlord may sell or dispose of the
property without further notice to the representative or person.
(22) Upon termination of an agreement described under
subsection (21)(d) of this section, unless the parties otherwise
agree or the representative or person has sold or removed the
property, the landlord may sell or dispose of the property
pursuant to this section without further notice to the
representative or person.
(23) Except for personal property that is subject to subsection
(21) of this section, a landlord may sell or dispose of a
tenant's abandoned personal property without complying with the
provisions of this section if, after termination of the tenancy
or no more than seven days prior to the termination of the
tenancy, the landlord and the tenant and any lienholder so agree
in a writing entered into in good faith. A landlord shall not, as
part of a rental agreement, as a condition to approving a sale of
Enrolled House Bill 2031 (HB 2031-B) Page 15
property on rented space under ORS 90.680 or in any other manner,
require a tenant or any lienholder to waive any right provided by
this section.
(24) Until personal property is conclusively presumed to be
abandoned under subsection (9) of this section, a landlord shall
not have a lien pursuant to ORS 87.152 for storing the personal
property.
SECTION 3. { + The amendments to ORS 90.425 and 90.675 by
sections 1 and 2 of this 2001 Act apply to sales of manufactured
dwellings, floating homes or personal property occurring on or
after the effective date of this 2001 Act. + }
----------
Passed by House February 16, 2001
Repassed by House March 9, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate March 7, 2001
...........................................................
President of Senate
Enrolled House Bill 2031 (HB 2031-B) Page 16
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 2031 (HB 2031-B) Page 17