75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
Senate Bill 952
Sponsored by COMMITTEE ON JUDICIARY
CHAPTER ................
AN ACT
Relating to rights of tenants in foreclosed property; creating
new provisions; amending ORS 86.745, 86.755 and 223.523; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 86.755 is amended to read:
86.755. (1) The sale { - shall - } { + must + } be held on
the date and at the time and place designated in the notice of
sale { - . - } { + , which must be at a designated time after 9
a.m. and before 4 p.m., based on the standard of time set forth
in ORS 187.110 and at a designated place in the county or one of
the counties where the property is situated. + } The trustee may
sell the property in one parcel or in separate parcels and shall
sell the parcel or parcels at auction to the highest bidder for
cash. Any person, including the beneficiary under the trust deed,
but excluding the trustee, may bid at the trustee's sale. The
attorney for the trustee, or { - any - } { + an + } agent
designated by the trustee or the attorney, may conduct the sale
and act in the sale as the { + trustee's + } auctioneer { - of
the trustee - } .
(2) The trustee or the attorney for the trustee, or
{ - any - } { + an + } agent designated by the trustee or the
attorney conducting the sale, may postpone the sale for one or
more periods totaling not more than 180 days from the original
sale date, giving notice of each adjournment by public
proclamation made at the time and place set for sale. The
{ - proclamation may be made by the - } trustee, the attorney
{ - , - } or { - any - } { + the + } agent designated by
the trustee or the attorney { + may make the proclamation + }.
(3) The purchaser shall pay at the time of sale the price bid,
and, within 10 days following payment, the trustee shall execute
and deliver the trustee's deed to the purchaser.
(4) The trustee's deed shall convey to the purchaser the
interest in the property { - which - } { + that + } the
grantor had, or had the power to convey, at the time { + the
grantor executed + } { - of the execution by the grantor of - }
the trust deed, together with any interest the grantor or the
grantor's successors in interest acquire after the execution of
the trust deed.
(5) { + (a) + } The purchaser at the trustee's sale { - shall
be - } { + is + } entitled to possession of the property on the
10th day { - following - } { + after + } the sale { - , and
any persons remaining - } { + . A person that remains + } in
Enrolled Senate Bill 952 (SB 952-B) Page 1
possession after { - that - } { + the 10th + } day under any
interest, except
{ - one - } { + an interest + } prior to the trust deed
or { + an interest the grantor or a successor of the grantor + }
created voluntarily { - by the grantor or a successor of the
grantor, shall be deemed to be tenants - } { + is a tenant + }
at sufferance. { + The purchaser may obtain possession of the
property from a tenant at sufferance by following the procedures
set forth in ORS 105.105 to 105.168 or other applicable judicial
procedure. + } { - All persons not holding under an interest
prior to the trust deed may be removed from possession by
following the procedures set out in ORS 105.105 to 105.168 or
other applicable judicial procedure, provided that a person
holding under an interest created voluntarily by the grantor or a
successor of the grantor must first receive 30 days' written
notice of the intent to remove that person served no earlier than
30 days before the date first set for the sale. Notices under
this subsection shall be served by first class mail. ' First
class mail' for purposes of this section does not include
certified or registered mail, or any other form of mail which may
delay or hinder actual delivery of mail to the addressee. - }
{ + (b) Except as provided in paragraph (c) of this
subsection, at any time after the trustee's sale the purchaser
may follow the procedures set forth in ORS 105.105 to 105.168 or
other applicable judicial procedure to obtain possession of the
property from a person that holds possession under an interest
that the grantor or a successor of the grantor created
voluntarily if, not earlier than 30 days before the date first
set for the sale, the person was served with not less than 30
days' written notice of the requirement to surrender or deliver
possession of the property.
(c) If the property purchased at the trustee's sale is a
dwelling unit, as defined in ORS 90.100 (9), that the person
holds under a tenancy that the grantor or a successor of the
grantor created voluntarily and in good faith, the purchaser may
follow the procedures set forth in ORS 105.105 to 105.168 or
other applicable judicial procedure to obtain possession if after
the sale the purchaser terminates the tenancy in a written notice
given to the person:
(A) At least 60 days before the termination date specified in
the notice, if the tenancy is a fixed term tenancy, as defined in
ORS 90.100, and at least 30 days before the date first set for
the trustee's sale the person provided the trustee with a copy of
the rental agreement that established the fixed term tenancy. The
provisions of this subparagraph do not apply to a purchaser that
does not intend to terminate a fixed term tenancy before the date
on which the fixed term tenancy ends.
(B) At least 30 days before the termination date specified in
the notice, if:
(i) The tenancy is a month-to-month tenancy or week-to-week
tenancy, as those terms are defined in ORS 90.100, and at least
30 days before the date first set for the trustee's sale the
person provided the trustee with a copy of the rental agreement
that established the tenancy or with other written evidence of
the existence of a rental agreement, if the person cannot provide
the rental agreement; or
(ii) The tenancy is a fixed term tenancy for which the person
has provided notice to the trustee as provided in subparagraph
(A) of this paragraph and the purchaser intends to occupy the
Enrolled Senate Bill 952 (SB 952-B) Page 2
property that is subject to the fixed term tenancy as the
purchaser's primary residence.
(d) A purchaser may not commence a proceeding under ORS 105.105
to 105.168 that is authorized under this subsection before the
later of:
(A) The 10th day after the trustee's sale;
(B) The date specified in a written notice of the requirement
to surrender or deliver possession of the property if the notice
is required by and is given to the person in accordance with
paragraph (b) of this subsection;
(C) The date specified in a written notice of the purchaser's
intent to terminate a tenancy if the notice is required by and is
given to the person in accordance with paragraph (c) of this
subsection; or
(D) The date on which the term of a fixed term tenancy ends.
(e) For the purposes of this subsection:
(A) A month-to-month tenancy or a week-to-week tenancy that a
grantor or a successor of the grantor first created after a
notice of sale was served under ORS 86.750 is presumed not to be
a tenancy created in good faith.
(B) A fixed term tenancy that a grantor or a successor of the
grantor created after a notice of sale was served under ORS
86.750 is not a tenancy created in good faith.
(6) A purchaser shall serve a notice under subsection (5) of
this section by first class mail and not by certified or
registered mail or a form of mail that may delay or hinder actual
delivery of mail to the addressee. The notice is effective three
days after the notice is mailed.
(7)(a) Notwithstanding the provisions of subsection (5)(c) of
this section and except as provided in paragraph (b) of this
subsection, the purchaser is not a landlord subject to the
provisions of ORS chapter 90 unless the purchaser:
(A) Accepts rent from the person who possesses the property
under a tenancy described in subsection (5)(c) of this section;
(B) Enters into a new rental agreement with the person who
possesses the property under a tenancy described in subsection
(5)(c) of this section; or
(C) Fails to terminate the tenancy as provided in subsection
(5)(c) of this section within 30 days after the date of the sale.
(b) The purchaser may act as a landlord for purposes of
terminating a tenancy in accordance with the provisions of ORS
90.396.
(8)(a) Except as provided in paragraph (b) of this subsection,
the purchaser is not liable to the person who possesses the
property under a tenancy described in subsection (5)(c) of this
section for:
(A) Damage to the property or diminution in rental value; or
(B) Returning a security deposit.
(b) A purchaser that is a landlord under the provisions of
subsection (7)(a) of this section is liable to the person who
possesses the property under a tenancy described in subsection
(5)(c) of this section for:
(A) Damage to the property or diminution in rental value that
occurs after the date of the trustee's sale; or
(B) Returning a security deposit the person pays after the date
of the trustee's sale. + }
{ - (6) - } { + (9) + } Notwithstanding subsection (2) of
this section, except when a beneficiary has participated in
obtaining a stay, foreclosure proceedings that are stayed by
order of the court, by proceedings in bankruptcy or for any other
Enrolled Senate Bill 952 (SB 952-B) Page 3
lawful reason shall, after release from the stay, continue as if
uninterrupted, if within 30 days after release the trustee gives
amended notice of sale by registered or certified mail to the
last-known address of
{ - those - } { + the + } persons listed in ORS 86.740 and
86.750 (1) and to the address provided by each person who was
present at the time and place set for the sale { - which - }
{ + that + } was stayed. The amended notice of sale
{ - shall - } { + must + }:
(a) Be given at least 20 days prior to the amended date of
sale;
(b) Set an amended date of sale { - which - } { + that + }
may be the same as the original sale date, or date to which the
sale was postponed, provided the requirements of ORS 86.740,
86.750 and this subsection are satisfied;
(c) Specify the time and place for sale;
(d) Conform to the requirements of ORS 86.745; and
(e) State that the original sale proceedings were stayed and
the date the stay terminated.
{ - (7) - } { + (10) + } If the publication of the notice
of sale was not completed prior to the date the foreclosure
proceedings were stayed by order of the court, by proceedings in
bankruptcy or for any other lawful reason, after release from the
stay, in addition to complying with the provisions of subsection
{ - (6) - } { + (9) + } of this section, the trustee shall
complete the publication by publishing an amended notice of sale
{ - which - } { + that + } states that the notice has been
amended following release from the stay, and { - which - }
{ + that + } contains the amended date of sale. The amended
notice { - shall - } { + must + } be published in a newspaper
of general circulation in each of the counties in which the
property is situated once a week for four successive weeks,
except that the required number of publications shall be reduced
by the number of publications that were completed prior to the
effective date of the stay. The last publication
{ - shall - } { + must + } be made more than 20 days prior to
the date the trustee conducts the sale.
SECTION 2. ORS 86.745 is amended to read:
86.745. The notice of sale shall { - set forth - } :
(1) { + List + }the names of the grantor, trustee and
beneficiary in the trust deed, and the mailing address of the
trustee.
(2) { - A description of - } { + Describe + } the property
{ - covered by - } the trust deed { + covers + }.
(3) { + Identify + } the book and page of the mortgage records
{ - where - } { + that record + } the trust deed { - is
recorded - } .
(4) { + State + } the default for which the foreclosure is
made.
(5) { + State + } the sum owing on the obligation
{ - secured by - } { + that + } the trust deed { +
secures + }.
(6) { + State that + } { - the election to sell - } the
property { + will be sold + } to satisfy the obligation.
(7) { + Set forth + } the date, time and place of the sale
{ - , which shall be held at a designated time after 9 a.m. and
before 4 p.m. based on the standard of time established by ORS
187.110 and at a designated place in the county or one of the
counties where the property is situated - } .
Enrolled Senate Bill 952 (SB 952-B) Page 4
(8) { + State that + }the right { + exists + } under ORS
86.753 to have the proceeding dismissed and the trust deed
reinstated by { - payment of - } { + paying + } the entire
amount then due, together with costs, trustee's { + fees + }
and { - attorney's - } { + attorney + } fees, and by curing
any other default complained of in the notice of default, at any
time { - prior to - } { + that is not later than + } five
days before the date last set for the sale.
{ + (9) Include a notice addressed clearly to any person who
occupies the property and who is or might be a tenant. The notice
required under this subsection must:
(a) Include contact information for the Oregon State Bar and a
person or organization that provides legal help to individuals at
no charge to the individual;
(b) Include information concerning the right the person has to
notice under ORS 86.755 (5) and state that the person may have
additional rights under federal law;
(c) Be set apart from other text in the notice of sale; and
(d) Be in substantially the following form: + }
________________________________________________________________
{ +
NOTICE TO TENANTS:
If you are a tenant of this property, foreclosure could affect
your rental agreement. A purchaser who buys this property at a
foreclosure sale has the right to require you to move out after
giving you notice of the requirement.
If you do not have a fixed-term lease, the purchaser may
require you to move out after giving you a 30-day notice on or
after the date of the sale.
If you have a fixed-term lease, you may be entitled to receive
after the date of the sale a 60-day notice of the purchaser's
requirement that you move out.
To be entitled to either a 30-day or 60-day notice, you must
give the trustee of the property written evidence of your rental
agreement at least 30 days before the date first set for the
sale. If you have a fixed-term lease, you must give the trustee
a copy of the rental agreement. If you do not have a fixed-term
lease and cannot provide a copy of the rental agreement, you may
give the trustee other written evidence of the existence of the
rental agreement. The date that is 30 days before the date of the
sale is ________. The name of the trustee and the trustee's
mailing address are listed on this notice.
Federal law may grant you additional rights, including a right
to a longer notice period. Consult a lawyer for more information
about your rights under federal law.
You have the right to apply your security deposit and any rent
you prepaid toward your current obligation under your rental
agreement. If you want to do so, you must notify your landlord in
writing and in advance that you intend to do so.
If you believe you need legal assistance with this matter, you
may contact the Oregon State Bar and ask for the lawyer referral
service. Contact information for the Oregon State Bar is included
with this notice. If you have a low income and meet federal
poverty guidelines, you may be eligible for free legal
assistance. Contact information for where you can obtain free
legal assistance is included with this notice. + }
________________________________________________________________
Enrolled Senate Bill 952 (SB 952-B) Page 5
SECTION 3. { + Section 4 of this 2009 Act is added to and made
a part of ORS chapter 90. + }
SECTION 4. { + A tenant who receives actual notice that the
property that is the subject of the tenant's rental agreement
with a landlord is in foreclosure may apply the tenant's security
deposit or prepaid rent to the tenant's obligation to the
landlord. The tenant must notify the landlord in writing that the
tenant intends to do so. + }
SECTION 5. ORS 223.523 is amended to read:
223.523. (1) Before a sale of real property under ORS 223.505
to 223.590 takes place, the treasurer shall have notice of the
sale printed once a week for four successive weeks in a daily or
weekly newspaper, as defined in ORS 193.010, generally circulated
in the county in which the sale will be held. The notice of sale
shall set forth the name and address of the treasurer conducting
the sale, a particular description of the real property to be
sold, including a street address, if any, the name of the owner
of the property, the amount unpaid on the lien or final
assessment and the date, time and place of sale, which shall be
held in accordance with ORS { - 86.745 (7) - } { +
86.755 + }.
(2) The treasurer shall send a copy of the first of the four
published notices by registered or certified mail to both the
owner of the real property to be sold at the last-known
post-office address of the owner or place of residence and to the
occupant, if any, of the real property to be sold. The treasurer
shall also send a notice containing the same information required
in a published notice under subsection (1) of this section by
registered or certified mail at least 60 days prior to the sale
to any person requesting notice under ORS 86.785 and to any
person having a lien or other interest in the real property to be
sold if the lien or interest appears of record. The treasurer
shall retain and file the return receipt for the registered or
certified mail.
SECTION 6. { + Section 4 of this 2009 Act and the amendments
to ORS 86.745 and 86.755 by sections 1 and 2 of this 2009 Act
apply to notices given under ORS 86.740 on or after the effective
date of this 2009 Act and to proceedings or actions under ORS
105.105 to 105.168 that begin on or after the effective date of
this 2009 Act. + }
SECTION 7. { + This 2009 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2009 Act takes effect 60 days
after its passage. + }
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Enrolled Senate Bill 952 (SB 952-B) Page 6
Passed by Senate May 5, 2009
Repassed by Senate June 3, 2009
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 1, 2009
...........................................................
Speaker of House
Enrolled Senate Bill 952 (SB 952-B) Page 7
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled Senate Bill 952 (SB 952-B) Page 8