76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
Senate Bill 491
Sponsored by Senator BONAMICI; Senator DINGFELDER (Presession
filed.)
CHAPTER ................
AN ACT
Relating to residential rental dwellings in foreclosure; creating
new provisions; amending ORS 86.745, 86.755, 90.300, 105.124
and 105.126; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 86.745, as amended by sections 1 and 2, chapter
28, Oregon Laws 2010, is amended to read:
86.745. The notice of sale shall:
(1) List the names of the grantor, trustee and beneficiary in
the trust deed, and the mailing address of the trustee.
(2) Describe the property the trust deed covers.
(3) Identify the book and page of the mortgage records that
record the trust deed.
(4) State the default for which the foreclosure is made.
(5) State the sum owing on the obligation that the trust deed
secures.
(6) State that the property will be sold to satisfy the
obligation.
(7) Set forth the date, time and place of the sale.
(8) State that the right exists under ORS 86.753 to have the
proceeding dismissed and the trust deed reinstated by paying the
entire amount then due, together with costs, trustee's fees and
attorney fees, and by curing any other default complained of in
the notice of default, at any time that is not later than five
days before the date last set for the sale.
(9) If the property includes one or more dwelling units { - ,
as defined in ORS 90.100 - } { + that are subject to ORS
chapter 90 + }, include a notice addressed clearly to any
{ - person - } { + individual + } who occupies the property
and who is or might be a residential 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 - } { + individual + } has to notice under ORS
86.755 { + (6)(c) + } { - (5)(c) 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:
? _____________________________________________________________ ?
Enrolled Senate Bill 491 (SB 491-B) Page 1
{ -
NOTICE TO RESIDENTIAL TENANTS - }
{ - The property in which you are living is in foreclosure. A
foreclosure sale is scheduled for ________. Unless the lender who
is foreclosing on this property is paid, the foreclosure will go
through and someone new will own this property. - }
{ - The following information applies to you only if you
occupy and rent this property as a residential dwelling under a
legitimate rental agreement. The information does not apply to
you if you own this property or if you are not a residential
tenant. - }
{ - If the foreclosure goes through, the business or
individual who buys this property at the foreclosure sale has the
right to require you to move out. The buyer must first give you
an eviction notice in writing that specifies the date by which
you must move out. The buyer may not give you this notice until
after the foreclosure sale happens. If you do not leave before
the move-out date, the buyer can have the sheriff remove you from
the property after a court hearing. You will receive notice of
the court hearing. - }
{ -
FEDERAL LAW REQUIRES - }
{ -
YOU TO BE NOTIFIED - }
{ - IF YOU ARE OCCUPYING AND RENTING THIS PROPERTY AS A
RESIDENTIAL DWELLING UNDER A LEGITIMATE RENTAL AGREEMENT, FEDERAL
LAW REQUIRES THE BUYER TO GIVE YOU NOTICE IN WRITING A CERTAIN
NUMBER OF DAYS BEFORE THE BUYER CAN REQUIRE YOU TO MOVE OUT. THE
FEDERAL LAW THAT REQUIRES THE BUYER TO GIVE YOU THIS NOTICE IS
EFFECTIVE UNTIL DECEMBER 31, 2012. Under federal law, the buyer
must give you at least 90 days' notice in writing before
requiring you to move out. If you are renting this property under
a fixed-term lease (for example, a six-month or one-year lease),
you may stay until the end of your lease term. If the buyer wants
to move in and use this property as the buyer's primary
residence, the buyer can give you written notice and require you
to move out after 90 days, even if you have a fixed-term lease
with more than 90 days left. - }
{ -
STATE LAW NOTIFICATION REQUIREMENTS - }
{ - IF THE FEDERAL LAW DOES NOT APPLY, STATE LAW STILL
REQUIRES THE BUYER TO GIVE YOU NOTICE IN WRITING BEFORE REQUIRING
YOU TO MOVE OUT IF YOU ARE OCCUPYING AND RENTING THE PROPERTY AS
A TENANT IN GOOD FAITH. EVEN IF THE FEDERAL LAW REQUIREMENT IS NO
LONGER EFFECTIVE AFTER DECEMBER 31, 2012, THE REQUIREMENT UNDER
STATE LAW STILL APPLIES TO YOUR SITUATION. Under state law, if
you have a fixed-term lease (for example, a six-month or one-year
lease), the buyer must give you at least 60 days' notice in
writing before requiring you to move out. If the buyer wants to
move in and use this property as the buyer's primary residence,
the buyer can give you written notice and require you to move out
after 30 days, even if you have a fixed-term lease with more than
30 days left. - }
{ - If you are renting under a month-to-month or week-to-week
rental agreement, the buyer must give you at least 30 days'
notice in writing before requiring you to move out. - }
{ - IMPORTANT: For the buyer to be required to give you
notice under state law, you must prove to the business or
individual who is handling the foreclosure sale that you are
occupying and renting this property as a residential dwelling
Enrolled Senate Bill 491 (SB 491-B) Page 2
under a legitimate rental agreement. The name and address of the
business or individual who is handling the foreclosure sale is
shown on this notice under the heading 'TRUSTEE.' You must mail
or deliver your proof not later than ________ (30 days before the
date first set for the foreclosure sale). Your proof must be in
writing and should be a copy of your rental agreement or lease.
If you do not have a written rental agreement or lease, you can
provide other proof, such as receipts for rent you paid. - }
{ -
ABOUT YOUR SECURITY DEPOSIT - }
{ - Under state law, you may apply your security deposit and
any rent you paid in advance against the current rent you owe
your landlord. To do this, you must notify your landlord in
writing that you want to subtract the amount of your security
deposit or prepaid rent from your rent payment. You may do this
only for the rent you owe your current landlord. If you do this,
you must do so before the foreclosure sale. The business or
individual who buys this property at the foreclosure sale is not
responsible to you for any deposit or prepaid rent you paid to
your landlord. - }
{ -
ABOUT YOUR TENANCY - }
{ -
AFTER THE FORECLOSURE SALE - }
{ - The business or individual who buys this property at the
foreclosure sale may be willing to allow you to stay as a tenant
instead of requiring you to move out. You should contact the
buyer to discuss that possibility if you would like to stay.
Under state law, if the buyer accepts rent from you, signs a new
residential rental agreement with you or does not notify you in
writing within 30 days after the date of the foreclosure sale
that you must move out, the buyer becomes your new landlord and
must maintain the property. Otherwise, the buyer is not your
landlord and is not responsible for maintaining the property on
your behalf and you must move out by the date the buyer specifies
in a notice to you. - }
{ - YOU SHOULD CONTINUE TO PAY RENT TO YOUR LANDLORD UNTIL
THE PROPERTY IS SOLD TO ANOTHER BUSINESS OR INDIVIDUAL OR UNTIL A
COURT OR A LENDER TELLS YOU OTHERWISE. IF YOU DO NOT PAY RENT,
YOU CAN BE EVICTED. AS EXPLAINED ABOVE, YOU MAY BE ABLE TO APPLY
A DEPOSIT YOU MADE OR PREPAID RENT YOU PAID AGAINST YOUR CURRENT
RENT OBLIGATION. BE SURE TO KEEP PROOF OF ANY PAYMENTS YOU MAKE
AND OF ANY NOTICE YOU GIVE OR RECEIVE CONCERNING THE APPLICATION
OF YOUR DEPOSIT OR YOUR PREPAID RENT. - }
{ - IT IS UNLAWFUL FOR ANY PERSON TO TRY TO FORCE YOU TO
LEAVE YOUR HOME WITHOUT FIRST GOING TO COURT TO EVICT YOU. FOR
MORE INFORMATION ABOUT YOUR RIGHTS, YOU MAY WISH TO CONSULT A
LAWYER. If you believe you need legal assistance, 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 do not have enough money to pay a lawyer and are
otherwise eligible, you may be able to receive legal assistance
for free. Information about whom to contact for free legal
assistance is included with this notice. - }
? _____________________________________________________________ ?
________________________________________________________________
{ +
NOTICE TO RESIDENTIAL TENANTS + }
Enrolled Senate Bill 491 (SB 491-B) Page 3
{ + The property in which you are living is in foreclosure. A
foreclosure sale is scheduled for ________ (date). The date of
this sale may be postponed. Unless the lender that is foreclosing
on this property is paid before the sale date, the foreclosure
will go through and someone new will own this property. After the
sale, the new owner is required to provide you with contact
information and notice that the sale took place.
The following information applies to you only if you are a bona
fide tenant occupying and renting this property as a residential
dwelling under a legitimate rental agreement. The information
does not apply to you if you own this property or if you are not
a bona fide residential tenant.
If the foreclosure sale goes through, the new owner will have
the right to require you to move out. Before the new owner can
require you to move, the new owner must provide you with written
notice that specifies the date by which you must move out. If you
do not leave before the move-out date, the new owner can have the
sheriff remove you from the property after a court hearing. You
will receive notice of the court hearing. + }
{ +
PROTECTION FROM EVICTION + }
{ + IF YOU ARE A BONA FIDE TENANT OCCUPYING AND RENTING THIS
PROPERTY AS A RESIDENTIAL DWELLING, YOU HAVE THE RIGHT TO
CONTINUE LIVING IN THIS PROPERTY AFTER THE FORECLOSURE SALE FOR:
o THE REMAINDER OF YOUR FIXED TERM LEASE, IF YOU HAVE A FIXED
TERM LEASE; OR
o AT LEAST 90 DAYS FROM THE DATE YOU ARE GIVEN A WRITTEN
TERMINATION NOTICE.
If the new owner wants to move in and use this property as a
primary residence, the new owner can give you written notice and
require you to move out after 90 days, even though you have a
fixed term lease with more than 90 days left.
You must be provided with at least 90 days' written notice
after the foreclosure sale before you can be required to move.
A bona fide tenant is a residential tenant who is not the
borrower (property owner) or a child, spouse or parent of the
borrower, and whose rental agreement:
o Is the result of an arm's-length transaction;
o Requires the payment of rent that is not substantially less
than fair market rent for the property, unless the rent is
reduced or subsidized due to a federal, state or local subsidy;
and
o Was entered into prior to the date of the foreclosure
sale. + }
{ +
ABOUT YOUR TENANCY + }
{ +
BETWEEN NOW AND THE FORECLOSURE SALE: + }
{ +
RENT + }
{ + YOU SHOULD CONTINUE TO PAY RENT TO YOUR LANDLORD UNTIL
THE PROPERTY IS SOLD OR UNTIL A COURT TELLS YOU OTHERWISE. IF YOU
DO NOT PAY RENT, YOU CAN BE EVICTED. BE SURE TO KEEP PROOF OF ANY
PAYMENTS YOU MAKE. + }
{ +
SECURITY DEPOSIT + }
{ + You may apply your security deposit and any rent you paid
in advance against the current rent you owe your landlord as
provided in ORS 90.367. To do this, you must notify your landlord
in writing that you want to subtract the amount of your security
Enrolled Senate Bill 491 (SB 491-B) Page 4
deposit or prepaid rent from your rent payment. You may do this
only for the rent you owe your current landlord. If you do this,
you must do so before the foreclosure sale. The business or
individual who buys this property at the foreclosure sale is not
responsible to you for any deposit or prepaid rent you paid to
your landlord. + }
{ +
ABOUT YOUR TENANCY + }
{ +
AFTER THE FORECLOSURE SALE + }
{ + The new owner that buys this property at the foreclosure
sale may be willing to allow you to stay as a tenant instead of
requiring you to move out after 90 days or at the end of your
fixed term lease. After the sale, you should receive a written
notice informing you that the sale took place and giving you the
new owner's name and contact information. You should contact the
new owner if you would like to stay. If the new owner accepts
rent from you, signs a new residential rental agreement with you
or does not notify you in writing within 30 days after the date
of the foreclosure sale that you must move out, the new owner
becomes your new landlord and must maintain the property.
Otherwise:
o You do not owe rent;
o The new owner is not your landlord and is not responsible for
maintaining the property on your behalf; and
o You must move out by the date the new owner specifies in a
notice to you.
The new owner may offer to pay your moving expenses and any
other costs or amounts you and the new owner agree on in exchange
for your agreement to leave the premises in less than 90 days or
before your fixed term lease expires. You should speak with a
lawyer to fully understand your rights before making any
decisions regarding your tenancy.
IT IS UNLAWFUL FOR ANY PERSON TO TRY TO FORCE YOU TO LEAVE YOUR
DWELLING UNIT WITHOUT FIRST GIVING YOU WRITTEN NOTICE AND GOING
TO COURT TO EVICT YOU. FOR MORE INFORMATION ABOUT YOUR RIGHTS,
YOU SHOULD CONSULT A LAWYER. If you believe you need legal
assistance, 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 do not have enough money to pay
a lawyer and are otherwise eligible, you may be able to receive
legal assistance for free. Information about whom to contact for
free legal assistance is included with this notice. + }
________________________________________________________________
SECTION 2. ORS 86.755 is amended to read:
86.755. (1) The trustee shall hold the trustee's sale 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 designated time of
the trustee's sale must be after 9 a.m. and before 4 p.m., based
on the standard of time set forth in ORS 187.110, and the
designated place of the trustee's sale must be in the county or
one of the counties in which 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
Enrolled Senate Bill 491 (SB 491-B) Page 5
trustee's sale. The attorney for the trustee, or an agent that
the trustee or the attorney designates, may conduct the sale and
act in the sale as the trustee's auctioneer.
(2) The trustee or the attorney for the trustee, or an agent
that the trustee or the attorney conducting the sale designates,
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 trustee, the attorney or an agent that the trustee
or the attorney designates 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 that the grantor had, or had the power
to convey, at the time the grantor executed 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) If property purchased at the trustee's sale
includes one or more dwelling units that are subject to ORS
chapter 90, the purchaser must provide written notice of change
in ownership to the occupants of each unit within 30 days after
the date of sale and before or concurrently with service of a
written termination notice authorized by subsection (6)(c)(B) of
this section.
(b) The notice required by this subsection must:
(A) Explain that the dwelling unit has been sold at a
foreclosure sale and that the purchaser at that sale is the new
owner.
(B) Include the date on which the foreclosure sale took place.
(C) Include the name, contact address and contact telephone
number of the purchaser or the purchaser's representative.
(D) Provide information about the rights of bona fide
residential tenants as provided in subsections (6)(c) and (e) and
(9)(a) of this section.
(E) 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.
(c) The notice must be served by one or more of the following
methods:
(A) Personal delivery to the tenant.
(B) First class mail to the tenant at the dwelling unit.
(C) First class mail to the tenant at the dwelling unit and
attachment of a second notice copy. The second notice copy must
be attached in a secure manner to the main entrance to the
portion of the premises in the possession of the tenant.
(D) If the names of the tenants are not known to the purchaser,
the notice may be addressed to 'occupants. '
(d) A notice that contains the information required under
paragraph (b)(B) and (C) of this subsection meets the
requirements of paragraph (b) of this subsection if the notice is
in substantially the following form: + }
________________________________________________________________
{ +
NOTICE TO RESIDENTIAL TENANTS OF CHANGE IN OWNERSHIP + }
{ + The property in which you are living has gone through
foreclosure and was sold to a new owner on ________ (date). The
contact information for the new owner or the owner's
Enrolled Senate Bill 491 (SB 491-B) Page 6
representative is __________________________________ (name,
address, telephone number).
IF YOU ARE A BONA FIDE TENANT RENTING THIS PROPERTY AS A
RESIDENTIAL DWELLING, YOU HAVE THE RIGHT TO CONTINUE LIVING IN
THIS PROPERTY AFTER THE FORECLOSURE SALE FOR:
o THE REMAINDER OF YOUR FIXED TERM LEASE, IF YOU HAVE A FIXED
TERM LEASE; OR
o AT LEAST 90 DAYS FROM THE DATE YOU ARE GIVEN A WRITTEN
TERMINATION NOTICE.
If the new owner wants to move in and use this property as a
primary residence, the new owner can give you written notice and
require you to move out after 90 days, even though you have a
fixed term lease with more than 90 days left.
You must be provided with at least 90 days' written notice
after the foreclosure sale before you can be required to move.
A bona fide tenant is a residential tenant who is not the
borrower (property owner), or a child, spouse or parent of the
borrower, and whose rental agreement:
o Is the result of an arm's-length transaction;
o Requires the payment of rent that is not substantially less
than fair market rent for the property, unless the rent is
reduced or subsidized due to a federal, state or local subsidy;
and
o Was entered into prior to the date of the foreclosure sale.
IMPORTANT:
YOU SHOULD CONTACT THE NEW OWNER OR THE OWNER'S REPRESENTATIVE
AT THE ADDRESS LISTED ON THIS NOTICE AS SOON AS POSSIBLE TO LET
THE NEW OWNER KNOW IF YOU ARE A BONA FIDE TENANT. YOU SHOULD
PROVIDE WRITTEN EVIDENCE OF THE EXISTENCE OF YOUR RENTAL
AGREEMENT, ESPECIALLY IF YOU HAVE A FIXED TERM RENTAL AGREEMENT
OR LEASE WITH MORE THAN 90 DAYS LEFT. Written evidence of your
rental agreement can be a copy of your lease or rental agreement,
or other documentation of the existence of your rental agreement.
Keep your original documents and a record of any information you
give to the new owner. + }
{ +
YOUR TENANCY + }
{ +
BETWEEN NOW AND THE MOVE-OUT DATE + }
{ + The new owner may be willing to allow you to stay as a
tenant instead of requiring you to move out after 90 days or at
the end of your fixed term lease. You should contact the new
owner if you would like to stay. If the new owner accepts rent
from you, signs a new residential rental agreement with you or
does not notify you in writing within 30 days after the date of
the foreclosure sale that you must move out, the new owner
becomes your new landlord and must maintain the property.
Otherwise:
o You do not owe rent;
o The new owner is not your landlord and is not responsible for
maintaining the property; and
o You must move out by the date the new owner specifies in a
notice to you.
The new owner may offer to pay your moving expenses and any
other costs or amounts you and the new owner agree on in exchange
for your agreement to leave the premises in less than 90 days or
before your fixed term lease expires. You should speak with a
lawyer to fully understand your rights before making any
decisions regarding your tenancy.
Enrolled Senate Bill 491 (SB 491-B) Page 7
IT IS UNLAWFUL FOR ANY PERSON TO TRY TO FORCE YOU TO LEAVE YOUR
DWELLING UNIT WITHOUT FIRST GIVING YOU WRITTEN NOTICE AND GOING
TO COURT TO EVICT YOU. FOR MORE INFORMATION ABOUT YOUR RIGHTS,
YOU SHOULD CONSULT A LAWYER. If you believe you need legal
assistance, 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 do not have enough money to pay
a lawyer and are otherwise eligible, you may be able to receive
legal assistance for free. Information about whom to contact for
free legal assistance is included with this notice. + }
________________________________________________________________
{ - (5)(a) - } { + (6)(a) Except as provided in paragraph
(b) or (c) of this subsection, + }the purchaser at the trustee's
sale is entitled to possession of the property on the 10th day
after the sale. A person that remains in possession after the
10th day under any interest, except an interest prior to the
trust deed or an interest the grantor or a successor of the
grantor created voluntarily 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.
(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
Enrolled Senate Bill 491 (SB 491-B) Page 8
subparagraph (A) of this paragraph and the purchaser intends to
occupy the property that is subject to the fixed term tenancy as
the purchaser's primary residence. - }
{ + (c) If the property purchased at the trustee's sale
includes a dwelling unit that is subject to ORS chapter 90 and an
individual occupies the unit under a bona fide tenancy, the
purchaser may obtain possession by following the procedures set
forth in ORS 105.105 to 105.168 and by using the complaint form
provided in ORS 105.124 or 105.126:
(A) Upon expiration of the fixed term of the tenancy, if the
bona fide tenancy is a fixed term tenancy as defined in ORS
90.100; or
(B) At least 90 days after service of a written termination
notice if the bona fide tenancy is:
(i) A fixed term tenancy and the purchaser intends to occupy,
as the purchaser's primary residence, the dwelling unit that is
subject to the fixed term tenancy; or
(ii) A month-to-month tenancy or week-to-week tenancy, as those
terms are defined in ORS 90.100.
(d) If a purchaser gives a 90-day written termination notice
pursuant to paragraph (c) of this subsection, the purchaser may
include in the notice a request that a tenant with a fixed term
tenancy provide written evidence of the existence of the tenancy
to the purchaser at an address described in the notice. Written
evidence includes a copy of the rental agreement or another
document that shows the existence of the fixed term tenancy.
Failure of the tenant to provide the requested written evidence
before the purchaser files an action for possession based on a
90-day notice:
(A) Does not prevent the tenant from asserting the existence of
the fixed term tenancy as a defense to the action.
(B) Prevents the tenant from recovering prevailing party
attorney fees or costs and disbursements pursuant to subsection
(11)(b) of this section. The 90-day notice must describe the
provisions of this paragraph. + }
{ - (d) - } { + (e) + } 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, if
the property is a dwelling unit and the purchaser has not
terminated the tenancy in accordance with paragraph (c) of this
subsection.
{ + (f) A purchaser seeking to obtain possession pursuant to
ORS 105.105 to 105.168 must attach proof of service of a written
termination notice required by paragraph (c) of this subsection
to the pleadings.
(g) In an action to obtain possession, violation of the
procedures required by subsection (5) of this section or
paragraph (c) of this subsection is a defense for a bona fide
tenant seeking to retain possession.
Enrolled Senate Bill 491 (SB 491-B) Page 9
(h) As used in this subsection, 'bona fide tenancy' means
tenancy of a dwelling unit that is subject to ORS chapter 90 that
results from an arm's-length transaction that occurred before the
date of a foreclosure sale in which:
(A) The mortgagor or the child, spouse or parent of the
mortgagor under the contract is not the tenant; and
(B) The rent required is not substantially less than fair
market rent for the dwelling unit, unless the rent is reduced or
subsidized due to a federal, state or local subsidy. + }
{ - (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 purchaser shall serve a notice under subsection (6)
of this section by one or more of the following methods:
(a) Personal delivery to the tenant.
(b) First class mail to the tenant at the dwelling unit.
(c) First class mail to the tenant at the dwelling unit and
attachment of a second notice copy. The second notice copy must
be attached in a secure manner to the main entrance to the
portion of the premises in the possession of the tenant.
(8) If the notice under subsection (6) of this section is
served by mail pursuant to subsection (7)(b) of this section, the
minimum period for compliance must be extended by three days and
the notice must include the extension in the period stated in the
notice. + }
{ - (7)(a) - } { + (9)(a) + } Notwithstanding the
provisions of subsection
{ - (5)(c) - } { + (6)(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 - } { + individual + }
who possesses the property under a tenancy described in
subsection { - (5)(c) - } { + (6)(c) + } of this section;
(B) Enters into a new rental agreement with the
{ - person - } { + individual + } who possesses the property
under a tenancy described in subsection { - (5)(c) - }
{ + (6)(c) + } of this section; or
(C) Fails to terminate the tenancy as provided in subsection
{ - (5)(c) - } { + (6)(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.
{ + (c) The purchaser is subject to the provisions of ORS
90.322, 90.375, 105.165, 659A.421 and 659A.425. The application
of ORS 90.375 to a purchaser that does not become a landlord does
not impose an affirmative duty to pay for or provide services.
For the purpose of damages pursuant to this paragraph, 'rent'
Enrolled Senate Bill 491 (SB 491-B) Page 10
refers to the amount paid by the tenant to the landlord for the
right to occupy the unit before the foreclosure. + }
{ - (8)(a) - } { + (10)(a) + } Except as provided in
paragraph (b) of this subsection, the purchaser is not liable to
the { - person - } { + individual + } who possesses the
property under a tenancy described in subsection
{ - (5)(c) - } { + (6)(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) - } { + (9)(a) + } of this section is
liable to the
{ - person - } { + individual + } who possesses the property
under a tenancy described in subsection { - (5)(c) - }
{ + (6)(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 - }
{ + individual + } pays after the date of the trustee's sale.
{ + (11)(a) Except as provided in paragraph (b) of this
subsection and notwithstanding an agreement to the contrary, in
an action or defense arising pursuant to subsection (6)(c), (d),
(f) or (g), (7) or (9)(c) of this section, reasonable attorney
fees at trial and on appeal may be awarded to the prevailing
party together with costs and disbursements.
(b) If a tenant asserts a successful defense to an action for
possession pursuant to subsection (6)(c), (d), (f) or (g) of this
section, the tenant is not entitled to prevailing party fees,
attorney fees or costs and disbursements if the purchaser:
(A) Did not know, and did not have reasonable cause to know, of
the existence of a fixed term tenancy when commencing the action
for possession; and
(B) Promptly dismissed the action upon becoming aware of the
existence of a fixed term tenancy.
(c) As used in this subsection, 'prevailing party' means the
party in whose favor final judgment is rendered. + }
{ - (9)(a) - } { + (12)(a) + } 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
lawful reason shall, after release from the stay, continue as if
uninterrupted, if within 30 days after release the trustee sends
amended notice of sale by registered or certified mail to the
last-known address of the persons listed in ORS 86.740 and 86.750
(1).
(b) In addition to the notice required under paragraph (a) of
this subsection, the trustee shall send amended notice of sale:
(A) By registered or certified mail to:
(i) The address provided by each person who was present at the
time and place set for the sale that was stayed; and
(ii) The address provided by each member of the Oregon State
Bar who by registered or certified mail requests the amended
notice of sale and includes with the request the notice of
default or an identification number for the trustee's sale that
would assist the trustee in identifying the property subject to
the trustee's sale and a self-addressed, stamped envelope
measuring at least 8.5 by 11 inches in size; or
(B) By posting a true copy or a link to a true copy of the
amended notice of sale on the trustee's Internet website.
{ - (10) - } { + (13) + } The amended notice of sale must:
Enrolled Senate Bill 491 (SB 491-B) Page 11
(a) Be given at least 20 days prior to the amended date of
sale;
(b) Set an amended date of sale that may be the same as the
original sale date, or date to which the sale was postponed,
provided the requirements of this subsection and ORS 86.740 and
86.750 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.
{ - (11) - } { + (14) + } If the publication of the notice
of sale was not completed before 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 subsections
{ - (9) and (10) - } { + (12) and (13) + } of this section,
the trustee shall complete the publication by publishing an
amended notice of sale that states that the notice has been
amended following release from the stay and that contains the
amended date of sale. The amended notice 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 must be reduced
by the number of publications that were completed before the
effective date of the stay. The last publication must be made
more than 20 days before the date the trustee conducts the sale.
SECTION 3. ORS 105.124 is amended to read:
105.124. 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. ___
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
RESIDENTIAL EVICTION COMPLAINT
PLAINTIFF (Landlord or agent):
____________
____________
Address: _________
City: _________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
Enrolled Senate Bill 491 (SB 491-B) Page 12
_______________________________________________________________
State: ______
Zip: ____
Telephone: ______
vs.
DEFENDANT (Tenants/Occupants):
____________
____________
MAILING ADDRESS: _______
City: _________
State: ______
Zip: ____
Telephone: ______
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
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:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
__
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.
Enrolled Senate Bill 491 (SB 491-B) Page 13
__
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) ______
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
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.
SECTION 4. ORS 105.126 is amended to read:
105.126. 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:
_________________________________________________________________
Enrolled Senate Bill 491 (SB 491-B) Page 14
IN THE CIRCUIT COURT
FOR THE COUNTY OF
______
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
EVICTION COMPLAINT
(Tenancy not covered by ORS chapter 90)
No. ___
(Landlord),
Plaintiff(s)
vs.
(Tenant),
Defendant(s)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
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:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
___
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) ______
Enrolled Senate Bill 491 (SB 491-B) Page 15
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
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.
SECTION 5. ORS 90.300, as amended by section 5, chapter 28,
Oregon Laws 2010, is amended to read:
90.300. (1) As used in this section, 'security deposit '
includes any last month's rent deposit.
(2)(a) Except as otherwise provided in this section, a landlord
may require a tenant to pay a security deposit. The landlord
shall provide the tenant with a receipt for any security deposit
the tenant pays. The landlord shall hold a security deposit or
prepaid rent for the tenant who is a party to the rental
agreement. A tenant's claim to the security deposit or prepaid
rent is prior to the claim of a creditor of the landlord,
including a trustee in bankruptcy.
(b) Except as provided in ORS 86.755 { - (8) - } { +
(10) + }, the holder of the landlord's interest in the premises
at the time the tenancy terminates is responsible to the tenant
for any security deposit or prepaid rent and is bound by this
section.
(3) A landlord may not charge a tenant a pet security deposit
for keeping a service animal or companion animal that a tenant
with a disability requires as a reasonable accommodation under
fair housing laws.
(4)(a) Except as otherwise provided in this subsection, a
landlord may not change the rental agreement to require the
tenant to pay a new or increased security deposit during the
first year after the tenancy has begun. Subject to subsection (3)
of this section, the landlord may require an additional deposit
if the landlord and tenant agree to modify the terms and
conditions of the rental agreement to permit a pet or for other
cause and the additional deposit relates to the modification.
This paragraph does not prevent a landlord from collecting a
security deposit that an initial rental agreement provided for
but that remained unpaid at the time the tenancy began.
(b) If a landlord requires a new or increased security deposit
after the first year of the tenancy, the landlord shall allow the
tenant at least three months to pay the new or increased deposit.
(5) The landlord may claim all or part of the security deposit
only if the landlord required the security deposit for any or all
of the purposes specified in subsection (6) of this section.
(6)(a) The landlord may claim from the security deposit only
the amount reasonably necessary:
(A) To remedy the tenant's defaults in the performance of the
rental agreement including, but not limited to, unpaid rent; and
(B) To repair damages to the premises caused by the tenant, not
including ordinary wear and tear.
Enrolled Senate Bill 491 (SB 491-B) Page 16
(b) A landlord is not required to repair damage caused by the
tenant in order for the landlord to claim against the deposit for
the cost to make the repair. Any labor costs the landlord
assesses under this subsection for cleaning or repairs must be
based on a reasonable hourly rate. The landlord may charge a
reasonable hourly rate for the landlord's own performance of
cleaning or repair work.
(c) Defaults and damages for which a landlord may recover under
this subsection include, but are not limited to:
(A) Carpet cleaning, other than the use of a common vacuum
cleaner, if:
(i) The cleaning is performed by use of a machine specifically
designed for cleaning or shampooing carpets;
(ii) The carpet was cleaned immediately before the tenant took
possession; and
(iii) The written rental agreement provides that the landlord
may deduct the cost of carpet cleaning regardless of whether the
tenant cleans the carpet before the tenant delivers possession as
described in ORS 90.147.
(B) Loss of use of the dwelling unit during the performance of
necessary cleaning or repairs, if the cleaning or repairs are
performed in a timely manner.
(7) A landlord may not require a tenant to pay or to forfeit a
security deposit or prepaid rent to the landlord for the tenant's
failure to maintain a tenancy for a minimum number of months in a
month-to-month tenancy.
(8) The landlord must apply any last month's rent deposit to
the rent due for the last month of the tenancy:
(a) When either the landlord or the tenant gives to the other a
notice of termination, pursuant to this chapter, other than a
notice of termination under ORS 90.394;
(b) When the landlord and tenant agree to terminate the
tenancy; or
(c) When the tenancy terminates in accordance with the
provisions of a written rental agreement for a term tenancy.
(9) A landlord shall account for and refund as provided in
subsections (11) to (13) of this section any portion of a last
month's rent deposit the landlord does not apply as provided
under subsection (8) of this section. Unless the tenant and
landlord agree otherwise, the tenant may not require the landlord
to apply a last month's rent deposit to rent due for any period
other than the last month of the tenancy. A last month's rent
deposit does not limit the amount of rent charged unless a
written rental agreement provides otherwise.
(10) When the tenancy terminates, a landlord shall account for
and refund to the tenant, in the same manner this section
requires for security deposits, the unused balance of any prepaid
rent the landlord has not previously refunded to the tenant under
ORS 90.380 and 105.120 (5)(b) or any other provision of this
chapter. The landlord may claim from the remaining prepaid rent
only the amount reasonably necessary to pay the tenant's unpaid
rent.
(11) In order to claim all or part of any prepaid rent or
security deposit, within 31 days after the tenancy terminates and
the tenant delivers possession the landlord shall give to the
tenant a written accounting that states specifically the basis or
bases of the claim. The landlord shall give a separate accounting
for security deposits and for prepaid rent.
(12) The landlord shall return to the tenant the security
deposit or prepaid rent or the portion of the security deposit or
Enrolled Senate Bill 491 (SB 491-B) Page 17
prepaid rent that the landlord does not claim in the manner
provided by subsections (10) and (11) of this section not later
than 31 days after the tenancy terminates and the tenant delivers
possession to the landlord.
(13) The landlord shall give the written accounting required
under subsection (11) of this section or shall return the
security deposit or prepaid rent as required by subsection (12)
of this section by personal delivery or by first class mail.
(14) If a security deposit or prepaid rent secures a tenancy
for a space for a manufactured dwelling or floating home the
tenant owns and occupies, whether or not in a facility, and the
dwelling or home is abandoned as described in ORS 90.425 (2) or
90.675 (2), the 31-day period described in subsections (11) and
(12) of this section commences on the earliest of:
(a) Waiver of the abandoned property process under ORS 90.425
(26) or 90.675 (22);
(b) Removal of the manufactured dwelling or floating home from
the rented space;
(c) Destruction or other disposition of the manufactured
dwelling or floating home under ORS 90.425 (10)(b) or 90.675
(10)(b); or
(d) Sale of the manufactured dwelling or floating home pursuant
to ORS 90.425 (10)(a) or 90.675 (10)(a).
(15) If the landlord fails to comply with subsection (12) of
this section or if the landlord in bad faith fails to return all
or any portion of any prepaid rent or security deposit due to the
tenant under this chapter or the rental agreement, the tenant may
recover the money due in an amount equal to twice the amount:
(a) Withheld without a written accounting under subsection (11)
of this section; or
(b) Withheld in bad faith.
(16)(a) A security deposit or prepaid rent in the possession of
the landlord is not garnishable property, as provided in ORS
18.618.
(b) If a landlord delivers a security deposit or prepaid rent
to a garnishor in violation of ORS 18.618 (1)(b), the landlord
that delivered the security deposit or prepaid rent to the
garnishor shall allow the tenant at least 30 days after a copy of
the garnishee response required by ORS 18.680 is delivered to the
tenant under ORS 18.690 to restore the security deposit or
prepaid rent. If the tenant fails to restore a security deposit
or prepaid rent under the provisions of this paragraph before the
tenancy terminates, and the landlord retains no security deposit
or prepaid rent from the tenant after the garnishment, the
landlord is not required to refund or account for the security
deposit or prepaid rent under subsection (10) of this section.
(17) This section does not preclude the landlord or tenant from
recovering other damages under this chapter.
SECTION 6. ORS 86.745, as amended by sections 1 and 2, chapter
28, Oregon Laws 2010, and section 1 of this 2011 Act, is amended
to read:
86.745. The notice of sale shall:
(1) List the names of the grantor, trustee and beneficiary in
the trust deed, and the mailing address of the trustee.
(2) Describe the property the trust deed covers.
(3) Identify the book and page of the mortgage records that
record the trust deed.
(4) State the default for which the foreclosure is made.
(5) State the sum owing on the obligation that the trust deed
secures.
Enrolled Senate Bill 491 (SB 491-B) Page 18
(6) State that the property will be sold to satisfy the
obligation.
(7) Set forth the date, time and place of the sale.
(8) State that the right exists under ORS 86.753 to have the
proceeding dismissed and the trust deed reinstated by paying the
entire amount then due, together with costs, trustee's fees and
attorney fees, and by curing any other default complained of in
the notice of default, at any time that is not later than five
days before the date last set for the sale.
(9) If the property includes one or more dwelling units that
are subject to ORS chapter 90, include a notice addressed clearly
to any individual who occupies the property and who is or might
be a residential 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 individual has
to notice under ORS 86.755 (6)(c);
(c) Be set apart from other text in the notice of sale; and
(d) Be in substantially the following form:
_________________________________________________________________
NOTICE TO RESIDENTIAL TENANTS
The property in which you are living is in foreclosure. A
foreclosure sale is scheduled for ________ (date). The date of
this sale may be postponed. Unless the lender that is foreclosing
on this property is paid before the sale date, the foreclosure
will go through and someone new will own this property. After the
sale, the new owner is required to provide you with contact
information and notice that the sale took place.
The following information applies to you only if you are a bona
fide tenant occupying and renting this property as a residential
dwelling under a legitimate rental agreement. The information
does not apply to you if you own this property or if you are not
a bona fide residential tenant.
If the foreclosure sale goes through, the new owner will have
the right to require you to move out. Before the new owner can
require you to move, the new owner must provide you with written
notice that specifies the date by which you must move out. If you
do not leave before the move-out date, the new owner can have the
sheriff remove you from the property after a court hearing. You
will receive notice of the court hearing.
PROTECTION FROM EVICTION
IF YOU ARE A BONA FIDE TENANT OCCUPYING AND RENTING THIS
PROPERTY AS A RESIDENTIAL DWELLING, YOU HAVE THE RIGHT TO
CONTINUE LIVING IN THIS PROPERTY AFTER THE FORECLOSURE SALE FOR:
o { - THE REMAINDER OF YOUR FIXED TERM LEASE, - } { + 60
DAYS FROM THE DATE YOU ARE GIVEN A WRITTEN TERMINATION
NOTICE, + } IF YOU HAVE A FIXED TERM LEASE; OR
o AT LEAST { - 90 - } { + 30 + } DAYS FROM THE DATE YOU ARE
GIVEN A WRITTEN TERMINATION NOTICE { + , IF YOU HAVE A
MONTH-TO-MONTH OR WEEK-TO-WEEK RENTAL AGREEMENT + }.
If the new owner wants to move in and use this property as a
primary residence, the new owner can give you written notice and
require you to move out after { - 90 - } { + 30 + } days,
even though you have a fixed term lease with more than
{ - 90 - } { + 30 + } days left.
Enrolled Senate Bill 491 (SB 491-B) Page 19
You must be provided with at least { - 90 - } { + 30 + }
days' written notice after the foreclosure sale before you can be
required to move.
A bona fide tenant is a residential tenant who is not the
borrower (property owner) or a child, spouse or parent of the
borrower, and whose rental agreement:
o Is the result of an arm's-length transaction;
o Requires the payment of rent that is not substantially less
than fair market rent for the property, unless the rent is
reduced or subsidized due to a federal, state or local subsidy;
and
o Was entered into prior to the date of the foreclosure sale.
ABOUT YOUR TENANCY
BETWEEN NOW AND THE FORECLOSURE SALE:
RENT
YOU SHOULD CONTINUE TO PAY RENT TO YOUR LANDLORD UNTIL THE
PROPERTY IS SOLD OR UNTIL A COURT TELLS YOU OTHERWISE. IF YOU DO
NOT PAY RENT, YOU CAN BE EVICTED. BE SURE TO KEEP PROOF OF ANY
PAYMENTS YOU MAKE.
SECURITY DEPOSIT
You may apply your security deposit and any rent you paid in
advance against the current rent you owe your landlord as
provided in ORS 90.367. To do this, you must notify your landlord
in writing that you want to subtract the amount of your security
deposit or prepaid rent from your rent payment. You may do this
only for the rent you owe your current landlord. If you do this,
you must do so before the foreclosure sale. The business or
individual who buys this property at the foreclosure sale is not
responsible to you for any deposit or prepaid rent you paid to
your landlord.
ABOUT YOUR TENANCY
AFTER THE FORECLOSURE SALE
The new owner that buys this property at the foreclosure sale
may be willing to allow you to stay as a tenant instead of
requiring you to move out after { - 90 - } { + 30 or 60 + }
days { - or at the end of your fixed term lease - } . After the
sale, you should receive a written notice informing you that the
sale took place and giving you the new owner's name and contact
information. You should contact the new owner if you would like
to stay. If the new owner accepts rent from you, signs a new
residential rental agreement with you or does not notify you in
writing within 30 days after the date of the foreclosure sale
that you must move out, the new owner becomes your new landlord
and must maintain the property. Otherwise:
o You do not owe rent;
o The new owner is not your landlord and is not responsible for
maintaining the property on your behalf; and
o You must move out by the date the new owner specifies in a
notice to you.
The new owner may offer to pay your moving expenses and any
other costs or amounts you and the new owner agree on in exchange
for your agreement to leave the premises in less than
{ - 90 - } { + 30 or 60 + } days { - or before your fixed
term lease expires - } . You should speak with a lawyer to fully
understand your rights before making any decisions regarding your
tenancy.
IT IS UNLAWFUL FOR ANY PERSON TO TRY TO FORCE YOU TO LEAVE YOUR
DWELLING UNIT WITHOUT FIRST GIVING YOU WRITTEN NOTICE AND GOING
TO COURT TO EVICT YOU. FOR MORE INFORMATION ABOUT YOUR RIGHTS,
YOU SHOULD CONSULT A LAWYER. If you believe you need legal
Enrolled Senate Bill 491 (SB 491-B) Page 20
assistance, 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 do not have enough money to pay
a lawyer and are otherwise eligible, you may be able to receive
legal assistance for free. Information about whom to contact for
free legal assistance is included with this notice.
_________________________________________________________________
SECTION 7. ORS 86.755, as amended by section 2 of this 2011
Act, is amended to read:
86.755. (1) The trustee shall hold the trustee's sale on the
date and at the time and place designated in the notice of sale.
The designated time of the trustee's sale must be after 9 a.m.
and before 4 p.m., based on the standard of time set forth in ORS
187.110, and the designated place of the trustee's sale must be
in the county or one of the counties in which 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 an
agent that the trustee or the attorney designates, may conduct
the sale and act in the sale as the trustee's auctioneer.
(2) The trustee or the attorney for the trustee, or an agent
that the trustee or the attorney conducting the sale designates,
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 trustee, the attorney or an agent that the trustee
or the attorney designates 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 that the grantor had, or had the power
to convey, at the time the grantor executed 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) If property purchased at the trustee's sale includes one
or more dwelling units that are subject to ORS chapter 90, the
purchaser must provide written notice of change in ownership to
the occupants of each unit within 30 days after the date of sale
and before or concurrently with service of a written termination
notice authorized by subsection (6)(c)(B) of this section.
(b) The notice required by this subsection must:
(A) Explain that the dwelling unit has been sold at a
foreclosure sale and that the purchaser at that sale is the new
owner.
(B) Include the date on which the foreclosure sale took place.
(C) Include the name, contact address and contact telephone
number of the purchaser or the purchaser's representative.
(D) Provide information about the rights of bona fide
residential tenants as provided in subsections (6)(c) and (e) and
(9)(a) of this section.
(E) 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.
(c) The notice must be served by one or more of the following
methods:
Enrolled Senate Bill 491 (SB 491-B) Page 21
(A) Personal delivery to the tenant.
(B) First class mail to the tenant at the dwelling unit.
(C) First class mail to the tenant at the dwelling unit and
attachment of a second notice copy. The second notice copy must
be attached in a secure manner to the main entrance to the
portion of the premises in the possession of the tenant.
(D) If the names of the tenants are not known to the purchaser,
the notice may be addressed to 'occupants. '
(d) A notice that contains the information required under
paragraph (b)(B) and (C) of this subsection meets the
requirements of paragraph (b) of this subsection if the notice is
in substantially the following form:
_________________________________________________________________
NOTICE TO RESIDENTIAL TENANTS OF CHANGE IN OWNERSHIP
The property in which you are living has gone through
foreclosure and was sold to a new owner on ________ (date). The
contact information for the new owner or the owner's
representative is __________________________________ (name,
address, telephone number).
IF YOU ARE A BONA FIDE TENANT RENTING THIS PROPERTY AS A
RESIDENTIAL DWELLING, YOU HAVE THE RIGHT TO CONTINUE LIVING IN
THIS PROPERTY AFTER THE FORECLOSURE SALE FOR:
o { - THE REMAINDER OF YOUR FIXED TERM LEASE, - } { + 60
DAYS FROM THE DATE YOU ARE GIVEN A WRITTEN TERMINATION
NOTICE, + } IF YOU HAVE A FIXED TERM LEASE; OR
o AT LEAST { - 90 - } { + 30 + } DAYS FROM THE DATE YOU
ARE GIVEN A WRITTEN TERMINATION NOTICE { + , IF YOU HAVE A
MONTH-TO-MONTH OR WEEK-TO-WEEK RENTAL AGREEMENT + }.
If the new owner wants to move in and use this property as a
primary residence, the new owner can give you written notice and
require you to move out after { - 90 - } { + 30 + } days,
even though you have a fixed term lease with more than
{ - 90 - } { + 30 + } days left.
You must be provided with at least { - 90 - } { + 30 + }
days' written notice after the foreclosure sale before you can be
required to move.
A bona fide tenant is a residential tenant who is not the
borrower (property owner), or a child, spouse or parent of the
borrower, and whose rental agreement:
o Is the result of an arm's-length transaction;
o Requires the payment of rent that is not substantially less
than fair market rent for the property, unless the rent is
reduced or subsidized due to a federal, state or local subsidy;
and
o Was entered into prior to the date of the foreclosure sale.
IMPORTANT:
YOU SHOULD CONTACT THE NEW OWNER OR THE OWNER'S REPRESENTATIVE
AT THE ADDRESS LISTED ON THIS NOTICE AS SOON AS POSSIBLE TO LET
THE NEW OWNER KNOW IF YOU ARE A BONA FIDE TENANT. YOU SHOULD
PROVIDE WRITTEN EVIDENCE OF THE EXISTENCE OF YOUR RENTAL
AGREEMENT, ESPECIALLY IF YOU HAVE A FIXED TERM RENTAL AGREEMENT
OR LEASE WITH MORE THAN { - 90 - } { + 30 + } DAYS LEFT.
Written evidence of your rental agreement can be a copy of your
lease or rental agreement, or other documentation of the
existence of your rental agreement. Keep your original documents
and a record of any information you give to the new owner.
YOUR TENANCY
BETWEEN NOW AND THE MOVE-OUT DATE
Enrolled Senate Bill 491 (SB 491-B) Page 22
The new owner may be willing to allow you to stay as a tenant
instead of requiring you to move out after { - 90 - } { + 30
or 60 + } days { - or at the end of your fixed term lease - } .
You should contact the new owner if you would like to stay. If
the new owner accepts rent from you, signs a new residential
rental agreement with you or does not notify you in writing
within 30 days after the date of the foreclosure sale that you
must move out, the new owner becomes your new landlord and must
maintain the property. Otherwise:
o You do not owe rent;
o The new owner is not your landlord and is not responsible for
maintaining the property; and
o You must move out by the date the new owner specifies in a
notice to you.
The new owner may offer to pay your moving expenses and any
other costs or amounts you and the new owner agree on in exchange
for your agreement to leave the premises in less than
{ - 90 - } { + 30 or 60 + } days { - or before your fixed
term lease expires - } . You should speak with a lawyer to fully
understand your rights before making any decisions regarding your
tenancy.
IT IS UNLAWFUL FOR ANY PERSON TO TRY TO FORCE YOU TO LEAVE YOUR
DWELLING UNIT WITHOUT FIRST GIVING YOU WRITTEN NOTICE AND GOING
TO COURT TO EVICT YOU. FOR MORE INFORMATION ABOUT YOUR RIGHTS,
YOU SHOULD CONSULT A LAWYER. If you believe you need legal
assistance, 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 do not have enough money to pay
a lawyer and are otherwise eligible, you may be able to receive
legal assistance for free. Information about whom to contact for
free legal assistance is included with this notice.
_________________________________________________________________
(6)(a) Except as provided in paragraph (b) or (c) of this
subsection, the purchaser at the trustee's sale is entitled to
possession of the property on the 10th day after the sale. A
person that remains in possession after the 10th day under any
interest, except an interest prior to the trust deed or an
interest the grantor or a successor of the grantor created
voluntarily 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.
(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 includes a
dwelling unit that is subject to ORS chapter 90 and an individual
occupies the unit under a bona fide tenancy, the purchaser may
obtain possession by following the procedures set forth in ORS
105.105 to 105.168 and by using the complaint form provided in
ORS 105.124 or 105.126:
Enrolled Senate Bill 491 (SB 491-B) Page 23
(A) { - Upon expiration of the fixed term of the tenancy, - }
{ + At least 60 days after service of a written termination
notice, + } if the bona fide tenancy is a fixed term tenancy as
defined in ORS 90.100; or
(B) At least { - 90 - } { + 30 + } days after service of a
written termination notice if the bona fide tenancy is:
(i) A fixed term tenancy and the purchaser intends to occupy,
as the purchaser's primary residence, the dwelling unit that is
subject to the fixed term tenancy; or
(ii) A month-to-month tenancy or week-to-week tenancy, as those
terms are defined in ORS 90.100.
(d) If a purchaser gives a { - 90-day - } { + 30-day + }
written termination notice pursuant to paragraph (c) of this
subsection, the purchaser may include in the notice a request
that a tenant with a fixed term tenancy provide written evidence
of the existence of the tenancy to the purchaser at an address
described in the notice. Written evidence includes a copy of the
rental agreement or another document that shows the existence of
the fixed term tenancy. Failure of the tenant to provide the
requested written evidence before the purchaser files an action
for possession based on a { - 90-day - } { + 30-day + }
notice:
(A) Does not prevent the tenant from asserting the existence of
the fixed term tenancy as a defense to the action.
(B) Prevents the tenant from recovering prevailing party
attorney fees or costs and disbursements pursuant to subsection
(11)(b) of this section. The { - 90-day - } { + 30-day + }
notice must describe the provisions of this paragraph.
(e) 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, if
the property is a dwelling unit and the purchaser has not
terminated the tenancy in accordance with paragraph (c) of this
subsection.
(f) A purchaser seeking to obtain possession pursuant to ORS
105.105 to 105.168 must attach proof of service of a written
termination notice required by paragraph (c) of this subsection
to the pleadings.
(g) In an action to obtain possession, violation of the
procedures required by subsection (5) of this section or
paragraph (c) of this subsection is a defense for a bona fide
tenant seeking to retain possession.
(h) As used in this subsection, 'bona fide tenancy' means
tenancy of a dwelling unit that is subject to ORS chapter 90 that
results from an arm's-length transaction that occurred before the
date of a foreclosure sale in which:
(A) The mortgagor or the child, spouse or parent of the
mortgagor under the contract is not the tenant; and
Enrolled Senate Bill 491 (SB 491-B) Page 24
(B) The rent required is not substantially less than fair
market rent for the dwelling unit, unless the rent is reduced or
subsidized due to a federal, state or local subsidy.
(7) A purchaser shall serve a notice under subsection (6) of
this section by one or more of the following methods:
(a) Personal delivery to the tenant.
(b) First class mail to the tenant at the dwelling unit.
(c) First class mail to the tenant at the dwelling unit and
attachment of a second notice copy. The second notice copy must
be attached in a secure manner to the main entrance to the
portion of the premises in the possession of the tenant.
(8) If the notice under subsection (6) of this section is
served by mail pursuant to subsection (7)(b) of this section, the
minimum period for compliance must be extended by three days and
the notice must include the extension in the period stated in the
notice.
(9)(a) Notwithstanding the provisions of subsection (6)(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 individual who possesses the property
under a tenancy described in subsection (6)(c) of this section;
(B) Enters into a new rental agreement with the individual who
possesses the property under a tenancy described in subsection
(6)(c) of this section; or
(C) Fails to terminate the tenancy as provided in subsection
(6)(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.
(c) The purchaser is subject to the provisions of ORS 90.322,
90.375, 105.165, 659A.421 and 659A.425. The application of ORS
90.375 to a purchaser that does not become a landlord does not
impose an affirmative duty to pay for or provide services. For
the purpose of damages pursuant to this paragraph, 'rent' refers
to the amount paid by the tenant to the landlord for the right to
occupy the unit before the foreclosure.
(10)(a) Except as provided in paragraph (b) of this subsection,
the purchaser is not liable to the individual who possesses the
property under a tenancy described in subsection (6)(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 (9)(a) of this section is liable to the individual who
possesses the property under a tenancy described in subsection
(6)(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 individual pays after the
date of the trustee's sale.
(11)(a) Except as provided in paragraph (b) of this subsection
and notwithstanding an agreement to the contrary, in an action or
defense arising pursuant to subsection (6)(c), (d), (f) or (g),
(7) or (9)(c) of this section, reasonable attorney fees at trial
and on appeal may be awarded to the prevailing party together
with costs and disbursements.
(b) If a tenant asserts a successful defense to an action for
possession pursuant to subsection (6)(c), (d), (f) or (g) of this
Enrolled Senate Bill 491 (SB 491-B) Page 25
section, the tenant is not entitled to prevailing party fees,
attorney fees or costs and disbursements if the purchaser:
(A) Did not know, and did not have reasonable cause to know, of
the existence of a fixed term tenancy when commencing the action
for possession; and
(B) Promptly dismissed the action upon becoming aware of the
existence of a fixed term tenancy.
(c) As used in this subsection, 'prevailing party' means the
party in whose favor final judgment is rendered.
(12)(a) 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 lawful reason shall,
after release from the stay, continue as if uninterrupted, if
within 30 days after release the trustee sends amended notice of
sale by registered or certified mail to the last-known address of
the persons listed in ORS 86.740 and 86.750 (1).
(b) In addition to the notice required under paragraph (a) of
this subsection, the trustee shall send amended notice of sale:
(A) By registered or certified mail to:
(i) The address provided by each person who was present at the
time and place set for the sale that was stayed; and
(ii) The address provided by each member of the Oregon State
Bar who by registered or certified mail requests the amended
notice of sale and includes with the request the notice of
default or an identification number for the trustee's sale that
would assist the trustee in identifying the property subject to
the trustee's sale and a self-addressed, stamped envelope
measuring at least 8.5 by 11 inches in size; or
(B) By posting a true copy or a link to a true copy of the
amended notice of sale on the trustee's Internet website.
(13) The amended notice of sale must:
(a) Be given at least 20 days prior to the amended date of
sale;
(b) Set an amended date of sale that may be the same as the
original sale date, or date to which the sale was postponed,
provided the requirements of this subsection and ORS 86.740 and
86.750 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.
(14) If the publication of the notice of sale was not completed
before 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 subsections (12) and (13) of
this section, the trustee shall complete the publication by
publishing an amended notice of sale that states that the notice
has been amended following release from the stay and that
contains the amended date of sale. The amended notice 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
must be reduced by the number of publications that were completed
before the effective date of the stay. The last publication must
be made more than 20 days before the date the trustee conducts
the sale.
SECTION 8. { + Notwithstanding the amendments to ORS 105.124
and 105.126 by sections 3 and 4 of this 2011 Act, for the purpose
Enrolled Senate Bill 491 (SB 491-B) Page 26
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. + }
SECTION 9. { + The amendments to ORS 86.745 and 86.755 by
sections 6 and 7 of this 2011 Act become operative January 1,
2015. + }
SECTION 10. { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect 90
days after passage. + }
Enrolled Senate Bill 491 (SB 491-B) Page 27
----------
Passed by Senate April 26, 2011
Repassed by Senate June 10, 2011
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House June 7, 2011
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Enrolled Senate Bill 491 (SB 491-B) Page 28
Received by Governor:
......M.,............., 2011
Approved:
......M.,............., 2011
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2011
.............................................................
Kate Brown, Secretary of State
Enrolled Senate Bill 491 (SB 491-B) Page 29