Chapter 105 — Property
Rights
2011 EDITION
PROPERTY RIGHTS
PROPERTY RIGHTS AND TRANSACTIONS
ACTIONS FOR RECOVERY OF REAL PROPERTY
105.005 Right
of action; recovery; damages
105.010 Contents
of complaint
105.015 Answer
105.020 Substitution
of landlord for tenant
105.025 Verdict
105.030 Damages
for withholding; setoff for improvements
105.035 Judgment
when plaintiff’s right to possession expires
105.040 Order
to make survey
105.045 Action
not prejudiced by alienation by person in possession
105.050 Cotenant
shall prove ouster
105.055 Conclusiveness
of judgment
105.060 Effect
of new trial on plaintiff’s possession
105.070 Rights
of donee under Donation Law
105.075 Notice
to quit; action to recover possession not affected by forcible entry or wrongful
detainer
105.080 Reimbursement
of tenants in common obtaining possession; lien
FORCIBLE ENTRY AND WRONGFUL DETAINER
105.105 Entry
to be lawful and peaceable only
105.110 Action
for forcible entry or wrongful detainer
105.111 Stay
of eviction for state service member
105.112 Action
by tenant to recover personal property; forms
105.113 Form
of summons
105.115 Causes
of unlawful holding by force; action for return of possession
105.120 Notice
necessary to maintain action in certain cases; waiver of notice; effect of
advance payments of rent
105.121 Forms
in action for possession of group recovery home; limitation on issues; attorney
fees
105.123 Complaint
105.124 Form
of complaint if ORS chapter 90 applies
105.126 Form
of complaint if ORS chapter 90 does not apply
105.128 Landlord
action to remove perpetrator of domestic violence, sexual assault or stalking
from possession of dwelling unit; retention of possession by victim
105.130 How
action conducted; fees
105.132 Assertion
of counterclaim
105.135 Service
and return of summons; posting; contents; use of facsimile
105.137 Effect
of failure of party to appear; attorney fees; judgment of dismissal; scheduling
of trial; unrepresented defendant
105.138 Compelling
arbitration; procedure
105.139 Burden
of proof in certain cases
105.140 Continuance
105.145 Judgment
on trial by court; duties of parties to stipulated agreement
105.146 Failure
of defendant to perform as ordered; judgment of restitution
105.148 Contesting
plaintiff’s affidavit or declaration of noncompliance; ex parte review of
hearing request; delaying execution upon judgment of restitution
105.149 Hearing
on compliance with order
105.151 Enforcement
of judgment of restitution; notice of restitution
105.152 Form
of notice of restitution for judgment entered under ORS 105.146
105.153 Form
of notice of restitution for judgment not entered under ORS 105.146
105.156 Form
of writ of execution for judgment of restitution
105.157 Form
of eviction trespass notice
105.158 Service
of notice of restitution
105.159 Computation
of time before plaintiff may request writ of execution
105.161 Service
and enforcement of writ of execution and eviction trespass notice
105.165 Alternative
method of removing, storing and disposing of tenant’s personal property;
requirements; landlord liability
105.168 Minor
as party in proceedings pertaining to residential dwellings
EASEMENT OWNER OBLIGATIONS
105.170 Definitions
for ORS 105.170 to 105.185
105.175 Easement
to be kept in repair; sharing costs; agreements
105.180 Action
for failure to comply with duty of holder; recovery of costs; arbitration
105.185 Application
of ORS 105.170 to 105.185
MODIFICATION OF LEASE TERMS
105.190 Covenant
of good faith and fair dealing; rights and obligations of parties
PARTITION
105.205 Who
may maintain partition
105.210 When
and how partition prevented
105.215 Complaint
105.220 Tenants
and lien creditors as defendants; liens on undivided interests
105.225 Summons;
to whom directed
105.230 Service
by publication
105.235 Answer
105.240 Rights
determinable; ascertainment of title where defendant defaults or sale is
necessary
105.245 Sale
or partition ordered by court
105.250 Compensation
when equal partition cannot be made
105.255 How
referees make partition; report
105.260 Power
of court over report; final judgment
105.265 Persons
not affected by judgment
105.270 Order
of sale on referees’ report
105.275 Conclusiveness
of order confirming report
105.280 How
sale made; notice of sale
105.285 Distribution
of proceeds of sale
105.290 Distribution
of proceeds by referee or payment into court
105.295 Continuance
of suit after proceeds paid into court
105.300 When
lienholder has other securities
105.305 Credit
allowed
105.310 Setting
off estate for life or years in part not sold
105.315 Disposition
of life estate or leasehold
105.320 Compensation
of tenants in case of sale
105.325 When
court determines value of tenancy
105.330 Rules
for determining value of certain estates
105.335 Protection
of unknown tenants
105.340 Provision
for future rights or interests
105.345 Notice
of terms of sale; separate sale of distinct parcels
105.350 Purchase
by referee, conservator or guardian forbidden
105.355 Report
of sale
105.360 Exception
to report; confirmation of sale; order of confirmation
105.365 Purchase
by encumbrancer or party entitled to share
105.370 Investment
of proceeds for certain parties
105.375 In
whose name securities taken or investments made
105.380 When
securities are payable to parties
105.385 Clerk’s
treatment of securities and investments
105.390 When
proceeds paid to conservator or guardian of infant
105.395 Payment
of proceeds to conservator of incapacitated person
105.400 When
conservator or guardian may consent to partition
105.405 Costs
and expenses of partition
HOUSING RECEIVERSHIP
105.420 Findings;
policy
105.425 Definitions
for ORS 105.420 to 105.445 and 105.455
105.430 Receivership
for buildings that constitute threat to public health, safety or welfare; procedure
105.435 Authority
of receiver; financing agreements; fee; abatement work exempt from public
contracting law
105.440 Review
of abatement expenditures by court; lien for unpaid expenses
105.445 Effect
on purchase money security interest of lien for unpaid abatement expenses
105.450 Termination
of receivership
105.455 Short
title
SELLER’S PROPERTY DISCLOSURE STATEMENT
105.462 Definitions
for ORS 105.462 to 105.490
105.463 Preemptive
effect of ORS 105.464
105.464 Form
of seller’s property disclosure statement
105.465 Application
of ORS 105.462 to 105.490, 696.301 and 696.870; disclosure statement
105.470 Exclusions
from ORS 105.462 to 105.490, 696.301 and 696.870
105.475 Buyer’s
statement of revocation of offer; criteria
105.480 Representations
in disclosure statement; application
105.485 Allocation
of burden of proof
105.490 Effect
of ORS 105.462 to 105.490, 696.301 and 696.870 on rights and remedies
ACTIONS AND SUITS FOR NUISANCES
105.505 Remedies
available for private nuisance
105.510 Procedure
for abating a nuisance
105.515 Stay
of issuance of warrant to abate
105.520 Justification
of sureties; proceedings when nuisance is not abated
ABATEMENT OF NUISANCE ACTIVITIES OR
CONDITIONS
105.550 Definitions
for ORS 105.550 to 105.600
105.555 Places
declared nuisances subject to abatement
105.560 Action
to restrain or enjoin nuisance; jurisdiction; remedies
105.565 Complaint;
service; jury trial; admissibility of reputation as evidence
105.575 Precedence
of action on court docket
105.580 Order
of abatement; cancellation
105.585 Costs
of securing or decontaminating property as lien; priority of lien; filing
notice of pendency
105.590 Penalty
for intentional violation of restraining order
105.595 Action
to abate nuisance not to affect other remedies; exception
105.600 ORS
105.550 to 105.600 not to limit authority of cities or counties to further
restrict activities
SUITS TO QUIET TITLE AND REMOVE CLOUD
105.605 Suits
to determine adverse claims
105.610 Suit
to cancel patent of donee under Donation Law
105.615 Action
by tenant in common against cotenants
105.618 Adverse
possession of railroad property
105.620 Acquiring
title by adverse possession
UNIFORM DISCLAIMER OF PROPERTY INTERESTS
105.623 Short
title
105.624 Definitions
for ORS 105.623 to 105.649
105.626 Scope
105.628 Effect
on other law
105.629 Power
to disclaim; general requirements; when irrevocable
105.633 Disclaimer
of interest in property
105.634 Disclaimer
of rights of survivorship in jointly held property
105.636 Disclaimer
of interest by trustee
105.638 Disclaimer
of power of appointment or other power not held in fiduciary capacity
105.639 Disclaimer
by appointee, object or taker in default of exercise of power of appointment
105.641 Disclaimer
of power held in fiduciary capacity
105.642 Delivery
or filing
105.643 When
disclaimer barred or limited
105.645 Tax
qualified disclaimer
105.646 Recording
of disclaimer
105.647 Application
to existing relationships
105.648 Effect
on recovery of money or property under ORS 411.620
105.649 Uniformity
of application and construction
PUBLIC USE OF LANDS
105.668 Immunity
from liability for injury or property damage arising from use of trail or
structures in public easement or right of way
105.672 Definitions
for ORS 105.672 to 105.696
105.676 Public
policy
105.682 Liabilities
of owner of land used by public for recreational purposes, gardening,
woodcutting or harvest of special forest products
105.688 Applicability
of immunities from liability for owner of land; restrictions
105.692 Right
to continued use of land following permitted use; presumption of dedication or
other rights
105.696 Duty
of care or liability not created; exercise of care required of person using
land
105.699 Rules
applicable to state lands
105.700 Prohibiting
public access to private land; notice requirements; damages
ACTION TO ESTABLISH BOUNDARY
105.705 Right
to bring action; filing of judgment
105.710 Pleadings
105.715 Mode
of proceeding
105.718 Procedure
for determining location of public land survey corner
105.720 Oath
and report of commissioners
105.725 Proceedings
on motion to confirm report
ACTIONS BASED ON CHANGE OF GRADE
105.755 State
liability for damages resulting from change of grade of roads other than city
streets; proceedings on cause of action; limitation
105.760 State
or county liability for damages resulting from change of grade of streets;
proceedings on cause of action
EXTINGUISHMENT OF FUTURE INTERESTS
105.770 Failure
of contingency; application of extinguishment
105.772 Preservation
of future interests; filing of notice of intent required; limitation
105.774 Exclusions
from application of ORS 105.770 and 105.772
MISCELLANEOUS ACTIONS
105.805 Action
for waste
105.810 Treble
damages for injury to or removal of produce, trees or shrubs; costs and
attorney fees; limitation on liability of contract logger
105.815 When
double damages are awarded for trespass; exception
105.820 Remedy
of tenants in common
105.825 Action
for injury to inheritance
105.831 Damages
for injury to mining claim
105.834 Owner’s
immunity from liability for theft of metal property
CARBON MONOXIDE ALARMS IN DWELLINGS
105.836 Definitions
for ORS 105.836 to 105.842 and 476.725
105.838 Carbon
monoxide alarm in dwelling
105.840 Action
by purchaser for failure of seller to install carbon monoxide alarm
105.842 Tampering
with carbon monoxide alarm
105.844 Short
title
RADON HAZARDS AND METHODS FOR TESTING
AND MITIGATION
105.848 Radon
information for potential buyers of one and two family dwellings
ACTION FOR REDUCED COMMERCIAL PROPERTY
VALUE RESULTING FROM STREET USE RESTRICTION
105.850 Commercial
property defined
105.855 Requirement
to compensate commercial property owners for reduced value of property caused
by street use restriction; effect of other access to property
105.860 Cause
of action against city for compensation; appeal procedure; intervention
105.865 Apportioning
compensation among property owners; termination of city liability
105.870 Limitation
on commencement of action
SOLAR ENERGY EASEMENTS
105.880 Conveyance
prohibiting use of solar energy systems void
105.885 Definitions
for ORS 105.885 to 105.895
105.890 Solar
energy easement appurtenant; termination
105.895 Requirements
for easement creation by instrument; recordation
WIND ENERGY EASEMENTS
105.900 “Wind
energy easement” defined
105.905 Wind
energy easement appurtenant; termination
105.910 Requirements
for easement creation by instrument; recordation
105.915 Instrument
creating lease or lease option of real property for wind energy conversion
system may be recorded; requirements
PERSONAL PROPERTY RIGHTS
105.920 Joint
tenancy in personal property; creation
MOTOR VEHICLE EVENT DATA RECORDERS
105.925 Definitions
for ORS 105.925 to 105.945
105.928 Ownership
of recorded data
105.932 Effect
of vehicle ownership transfer on ownership of data; prohibited insurer and
lessor actions
105.935 Court
order for retrieval or use of data by law enforcement officers or certain
emergency service providers
105.938 Court
order for retrieval or use of data by insurer
105.942 Retrieval
or use of data for responding to medical emergency, for medical research or for
vehicle servicing or repair
105.945 Exempted
data
RULE AGAINST PERPETUITIES
105.950 Statutory
rule against perpetuities
105.955 When
nonvested property interest or power of appointment created
105.960 Reformation
105.965 Exclusions
from statutory rule against perpetuities
105.970 Prospective
application
105.975 Short
title; application and construction; supersession and repeal of common law
XERISCAPING COMMERCIAL OR INDUSTRIAL
PROPERTY
105.980 Xeriscaping
ACTIONS FOR RECOVERY OF REAL PROPERTY
105.005 Right of action; recovery;
damages. (1) Any person who has a legal estate
in real property and a present right to the possession of the property, may
recover possession of the property, with damages for withholding possession, by
an action at law. The action shall be commenced against the person in the
actual possession of the property at the time, or if the property is not in the
actual possession of anyone, then against the person acting as the owner of the
property.
(2)
In an action brought under subsection (1) of this section or in a separate
action for damages only, a person who, throughout the vesting period, used or
occupied land of another with the honest and objectively reasonable belief that
the person was the actual legal owner of the land shall not be liable for:
(a)
Double or treble damages under ORS 105.810 (1) to (3) or 105.815; or
(b)
The value of the use or occupation of the land by the person throughout the
vesting period. [Amended by 1989 c.1069 §2; 1991 c.109 §1; 1999 c.544 §3]
105.010 Contents of complaint.
The plaintiff in the complaint shall set forth:
(1)
The nature of the estate of the plaintiff in the property, whether it be in
fee, for life, or for a term of years; including, when necessary, for whose
life and the duration of the term.
(2)
That the plaintiff is entitled to the possession thereof.
(3)
That the defendant wrongfully withholds the property from the plaintiff to the
damage of the plaintiff for such sum as is therein claimed.
(4)
A description of the property with such certainty as to enable the possession
thereof to be delivered if there is recovery.
105.015 Answer.
The defendant shall not be allowed to give in evidence any estate, license or
right of possession in the property in the defendant or another, unless the
same is pleaded in the answer. If pleaded, the nature and duration of the
estate, license or right of possession shall be set forth with the certainty
and particularity required in a complaint. If the defendant does not defend for
the whole of the property, the defendant shall specify for what particular part
the defendant does defend.
105.020 Substitution of landlord for
tenant. A defendant who is in actual possession
may, for answer, plead that the defendant is in possession only as tenant of
another; naming the landlord and the place of residence of the landlord.
Thereupon the landlord, if the landlord applies therefor, shall be made
defendant in place of the tenant and the action shall proceed in all respects
as if originally commenced against the landlord. If the landlord does not apply
to be made defendant within the day the tenant is allowed to answer, the
landlord shall not be allowed to, but shall be made defendant if the plaintiff
requires it. If the landlord is made defendant on motion of the plaintiff the
landlord shall be required to appear and answer within 10 days from notice of
the pendency of the action and the order making the landlord defendant, or such
further notice as the court or judge thereof may prescribe.
105.025 Verdict.
The jury by their verdict shall find as follows:
(1)
If the verdict is for the plaintiff, that the plaintiff is entitled to the
possession of all or a part of the property described in the complaint, or that
the plaintiff owns an undivided share or interest in all or a part of the
property; including the nature and duration of the estate of the plaintiff in such
property.
(2)
If the verdict is for the defendant, that the plaintiff is not entitled to the
possession of the property described in the complaint, or the part that the
defendant defends, and the estate, license or right to possession in such
property established on the trial by the defendant, if any, as the same is
required to be pleaded.
105.030 Damages for withholding; setoff
for improvements. The plaintiff shall only be
entitled to recover damages for withholding the property for the term of six years
next preceding the commencement of the action, and for any period that may
elapse from the commencement to the time of giving a verdict, excluding the
value of the use of permanent improvements made by the defendant. When
permanent improvements have been made upon the property by the defendant, or
those under whom the defendant claims, while holding under color of title in
good faith and adverse to the claim of the plaintiff, the value of the
improvements at the time of trial shall be allowed as a setoff against such
damages.
105.035 Judgment when plaintiff’s right to
possession expires. If the right of the plaintiff to
the possession of the property expires after the commencement of the action and
before the trial, the verdict shall be given according to the fact and judgment
shall be given only for the damages.
105.040 Order to make survey.
(1) The court or judge thereof may, on motion, and after notice to the adverse
party, or cause shown, grant an order allowing the party applying therefor to
enter upon the property in controversy and make survey and admeasurement
thereof for the purposes of the action.
(2)
The order shall describe the property. A copy of the order shall be served upon
the defendant, and thereupon the party may enter upon the property, and make
the survey and admeasurement. If any unnecessary injury is done to the
premises, the applying party is liable therefor.
105.045 Action not prejudiced by
alienation by person in possession. An action for
the recovery of the possession of real property against a person in possession
is not prejudiced by any alienation made by such person, either before or after
the commencement of the action. If the alienation is made after the
commencement of the action, and the defendant does not satisfy the judgment
recovered for damages for withholding the possession, the damages may be
recovered by action against the purchaser.
105.050 Cotenant shall prove ouster.
In an action by a tenant in common of real property against a cotenant, the
plaintiff shall show, in addition to the evidence of right of possession, that
the defendant either denied the plaintiff’s right or did some act amounting to
a denial. [Amended by 1969 c.591 §281]
105.055 Conclusiveness of judgment.
(1) Except as provided in subsection (2) of this section, the judgment in an
action to recover the possession of real property is conclusive as to the
estate in the property and the right to the possession thereof, so far as the
same is thereby determined, upon the party against whom the judgment is given,
and against all persons claiming from, through or under such party, after the
commencement of the action.
(2)
When service of the summons is made by publication and judgment is given for
want of an answer, at any time within two years from the entry thereof the
defendant or the successor in interest of the defendant as to the whole or any
part of the property, shall, upon application to the court or judge thereof, be
entitled to an order vacating the judgment and granting the defendant a new
trial upon the payment of the costs of the action.
(3)
In an action against a tenant the judgment is conclusive against a landlord,
who has been made defendant in place of the tenant, to the same extent as if
the action had been originally commenced against the landlord.
105.060 Effect of new trial on plaintiff’s
possession. If the plaintiff has taken possession
of the property before the judgment is set aside and a new trial granted as
provided in ORS 105.055 (2), the possession is not thereby affected in any way.
If judgment is given for the defendant in the new trial, the defendant is
entitled to restitution by execution in the same manner as if the defendant
were plaintiff.
105.065
[Repealed by 1969 c.591 §305]
105.070 Rights of donee under Donation
Law. In an action at law for the recovery of
the possession of real property, if either party claims the property as a donee
of the United States under the Act of Congress approved September 27, 1850,
commonly called the Donation Law, or the Acts amendatory thereto, such party
from the date of settlement of the party on the property, as provided in said
Acts, is deemed to have a legal estate in fee in the property. The estate shall
continue upon the condition that the party performs the conditions required by
such Acts, and is unconditional and indefeasible after the performance of such
condition. If both plaintiff and defendant claim title to the same real
property by virtue of settlement under such Acts, the settlement and the
performance of the subsequent conditions shall be conclusively presumed in
favor of the party having, or claiming under, the elder patent certificate or
patent, unless it appears upon the face of such certificate or patent that it
is absolutely void.
105.075 Notice to quit; action to recover
possession not affected by forcible entry or wrongful detainer.
In any action to recover the possession of real property, as provided for in
ORS 105.005, notice to quit, when necessary, may be given as prescribed in ORS
91.050 to 91.110 and 105.120. Nothing in ORS 105.105 to 105.168 prevents such
action from being maintained for the recovery of the possession of real
property although the entry of the defendant is forcible or the holding is
unlawful and with force as defined in ORS 105.105.
105.080 Reimbursement of tenants in common
obtaining possession; lien. In all cases where property in
this state is or has been claimed or owned by residents of this state in common
with others, and such residents have obtained or shall obtain the possession of
the property at their own cost, expense or labor, they are entitled to
reimbursement from the remaining claimant in common of the property, according
to their proportionate interest therein. Residents so obtaining possession of
such property have a lien upon it until the remaining claimant has paid or
tendered such proportionate share of the reasonable costs, expenses or labor
aforesaid.
FORCIBLE ENTRY AND WRONGFUL DETAINER
105.105 Entry to be lawful and peaceable
only. No person shall enter upon any land,
tenement or other real property unless the right of entry is given by law. When
the right of entry is given by law the entry shall be made in a peaceable
manner and without force.
105.110 Action for forcible entry or
wrongful detainer. When a forcible entry is made
upon any premises, or when an entry is made in a peaceable manner and
possession is held by force, the person entitled to the premises may maintain
in the county where the property is situated an action to recover the
possession of the premises in the circuit court or before any justice of the
peace of the county. [Amended by 1985 c.241 §1; 1995 c.658 §68]
105.111 Stay of eviction for state service
member. (1) As used in this section, “state
service member” means a member of the organized militia who is called into
active service of the state by the Governor under ORS 399.065 (1) for 30 or
more consecutive days.
(2)
In an action pursuant to ORS 105.110, the court may stay the eviction of the
defendant for up to 90 days if:
(a)
The defendant is a state service member;
(b)
The agreed-upon rent does not exceed $1,200 per month; and
(c)
The premises are occupied chiefly for dwelling purposes by the spouse, children
or other dependents of the defendant.
(3)
If the defendant requests a stay of the eviction for up to 90 days and the
defendant can prove that the ability of the defendant to pay the agreed-upon
rent is materially affected by being called into active service, the court may
grant the stay of the eviction. [2003 c.387 §7]
Note:
105.111 was added to and made a part of 105.105 to 105.168 by legislative
action but was not added to any smaller series therein. See Preface to Oregon
Revised Statutes for further explanation.
105.112 Action by tenant to recover
personal property; forms. (1) A tenant or former tenant
may bring an action to recover personal property taken or retained by a
landlord in violation of ORS chapter 90.
(2)
An action under this section shall be governed by the provisions of ORS 105.105
to 105.168 except that:
(a)
The complaint shall be in substantially the following form and shall be
available from the court clerk:
______________________________________________________________________________
IN THE _________
COURT FOR
THE COUNTY OF ____________
(Tenant), )
)
Plaintiff(s), )
)
vs. ) No.___
)
(Landlord), )
)
Defendant(s). )
COMPLAINT
FOR RETURN
OF
PERSONAL PROPERTY
I
Defendant(s)
(is) (are) in possession of the following personal property belonging to the
plaintiff(s):
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
See attached list.
II
Defendant(s) took the personal property
alleged in paragraph I from premises rented by plaintiff(s) from defendant(s)
at:
______________
(street and number)
______________
(city)
______________
(county)
III
Plaintiff(s) (is) (are) entitled to
possession of the personal property because:
______Defendant(s) took the personal
property wrongfully because plaintiff(s) had not abandoned the property, and
because either there was no court order awarding defendant(s) possession of the
premises or the plaintiff(s) (was) (were) not continuously absent from the
premises for seven days after such an order when defendant(s) removed the
personal property.
______Defendant(s) lawfully took
possession of the personal property after enforcement of a court order for
possession of the premises pursuant to ORS 105.165, but refused to return the
personal property to plaintiff(s) without payment although plaintiff(s)
demanded return of the property within the time provided by ORS 90.425 or
90.675.
______Defendant(s) lawfully took possession
of the personal property pursuant to ORS 105.161, but refused to return the
personal property to plaintiff(s) although plaintiff(s) offered payment of all
sums due for storage and any costs of removal of the personal property and
demanded return of the property within the time provided by ORS 90.425 or
90.675.
______Other: _______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Wherefore, plaintiff(s) pray(s) for
possession of the personal property and costs and disbursements incurred
herein.
________ _____________________
Date Signature
of Plaintiff(s)
______________________________________________________________________________
(b) The complaint shall be signed by the
plaintiff or an attorney representing the plaintiff as provided by ORCP 17 or
verified by an agent or employee of the plaintiff or an agent or employee of an
agent of the plaintiff.
(c) The answer shall be in substantially
the following form and shall be available from the court clerk:
______________________________________________________________________________
IN THE _________ COURT FOR
THE COUNTY OF ____________
(Tenant), )
)
Plaintiff(s), )
)
vs. ) No.___
)
(Landlord), )
)
Defendant(s). )
ANSWER
I (we) deny that the plaintiff(s) is (are)
entitled to possession of the personal property subject of the complaint
because:
______The defendant(s) did not take and do
not have possession of any of the property listed in the complaint.
______The defendant(s) took possession of
the personal property as provided in ORS 90.425 or 90.675 after giving written
notice that it was considered abandoned, and the plaintiff(s) did not make a
timely demand for return of the property.
______The defendant(s) took possession of
the personal property as provided in ORS 90.425 or 90.675 after giving written
notice that it was considered abandoned, but not after a sheriff’s enforcement
of an eviction judgment against the plaintiff(s) as provided in ORS 105.165,
and the plaintiff(s) refused to pay charges lawfully due for storage.
______Other:
__________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
I (we) ask that the plaintiff(s) take
nothing by the complaint and that I (we) be awarded my (our) costs and
disbursements.
________ _____________________
Date Signature
of Plaintiff(s)
______________________________________________________________________________
(d) The issue at trial shall be limited to
whether the plaintiff is entitled to possession of the personal property listed
in the complaint.
(e) No claim for damages shall be asserted
by either party in the action for possession of the personal property under
this section, but each party may pursue any claim for damages in a separate
action.
(f) A party may join an action for
possession of personal property with an action for damages or a claim for other
relief, but the proceeding is not governed by the provisions of ORS 105.105 to
105.168.
(g) If the court determines that the
plaintiff is entitled to possession of the personal property that is the
subject of the complaint, the court shall enter an order directing the sheriff
to seize the personal property to which the court finds the plaintiff entitled,
and to deliver that property to the plaintiff. The court may provide that the
defendant have a period of time to deliver the property to the plaintiff
voluntarily before execution. The costs of execution may be recovered in the
manner provided in ORS 18.999.
(h) Subject to the provisions of ORCP 68,
a prevailing party who has been represented by counsel may recover attorney
fees as provided by ORS 90.255. [1989 c.506 §22; 1991 c.67 §21; 1997 c.577 §30;
2001 c.596 §46]
105.113
Form of summons. Notwithstanding ORCP 7 C, for
premises to which ORS chapter 90 or ORS 91.120 applies, the summons must be in
substantially the following form and be available from the court clerk:
______________________________________________________________________________
IN THE CIRCUIT COURT
FOR THE COUNTY OF
______________
No. _____
SUMMONS
RESIDENTIAL EVICTION
PLAINTIFF
(Landlord or agent):
___________________________
___________________________
vs.
DEFENDANT
(Tenants/Occupants):
___________________________
___________________________
TO: _______________(Street
address and city of property occupied by defendant)
_______________
(Mailing address if different)
NOTICE TO TENANTS:
READ THESE PAPERS CAREFULLY
YOUR LANDLORD WANTS TO
EVICT YOU
ON_________,
2_____ AT _____ A.M./P.M., you must come to the County Court House located at_________.
You do not have to pay any fees to the court for this first hearing.
·
If you do not appear in court and
your landlord does, your landlord will win automatically and can have the
Sheriff physically remove you.
·
If you do show up in court and
your landlord does not, this eviction action will be dropped.
·
If both of you show up:
·
The judge may ask you to try to
reach an agreement with your landlord, but this is voluntary. Trained mediators
may be available free of charge to help resolve disputes.
·
The court will schedule a trial
if you and your landlord do not reach an agreement or if you do not agree to
move out.
IF
YOU WANT A TRIAL, YOU MUST:
·
Show up in court at the time
scheduled above;
·
On the same day, file an Answer
with the Court giving a legal reason why you should not be evicted (the Court
can give you a form);
·
Give a copy of the Answer to your
landlord (or your landlord’s agent or attorney); and
·
Pay a filing fee of $_____ (the
judge may allow payment to be deferred in certain circumstances).
IF
YOU HAVE QUESTIONS, YOU SHOULD SEE AN ATTORNEY IMMEDIATELY. If you need help
finding an attorney, you can contact the Oregon State Bar’s Lawyer Referral
Service online at www.oregonstatebar.org or by calling 503-684-3763 (in the Portland
metropolitan area) or toll-free elsewhere in Oregon at 800-452-7636.
___________________________
Signature
of Plaintiff (landlord or agent)
Plaintiff’s
address:
_____________________
_____________________
Plaintiff’s
telephone number: _________
I
certify that this is a true copy of the original summons:
_____________________
Signature of Plaintiff (landlord
or agent)
______________________________________________________________________________
[2001 c.596 §8; 2011 c.398 §4]
105.115
Causes of unlawful holding by force; action for return of possession.
(1) Except as provided by subsections (2) and (3) of this section, the
following are causes of unlawful holding by force within the meaning of ORS
105.110, 105.123 and 105.126:
(a) When the tenant or person in
possession of any premises fails or refuses to pay rent within 10 days after
the rent is due under the lease or agreement under which the tenant or person
in possession holds, or to deliver possession of the premises after being in
default on payment of rent for 10 days.
(b) When the lease by its terms has
expired and has not been renewed, or when the tenant or person in possession is
holding from month to month, or year to year, and remains in possession after
notice to quit as provided in ORS 105.120, or is holding contrary to any
condition or covenant of the lease or is holding possession without any written
lease or agreement.
(c) When the owner or possessor of a
recreational vehicle that was placed or driven onto property without the prior
consent of the property owner, operator or tenant fails to remove the
recreational vehicle. The property owner or operator is not required to serve a
notice to quit the property before commencing an action under ORS 105.126
against a recreational vehicle owner or possessor holding property by force as
described in this paragraph.
(d) When the person in possession of a
premises remains in possession after the time when a purchaser of the premises
is entitled to possession in accordance with the provisions of ORS 18.946 or
86.755.
(e) When the person in possession of a
premises remains in possession after the time when a deed given in lieu of
foreclosure entitles the transferee named in the deed to possession of the
premises.
(f) When the person in possession of a
premises remains in possession after the time when a seller is entitled to
possession in accordance with the provisions of ORS 93.930 (2)(c) or pursuant
to a judgment of strict foreclosure of a recorded contract for transfer or
conveyance of an interest in real property.
(g) When the person in possession of a
premises remains in possession after the expiration of a valid notice
terminating the person’s right to occupy the premises pursuant to ORS 91.120,
91.122 or 91.130.
(2) In the case of a dwelling unit to
which ORS chapter 90 applies:
(a) The following are causes of unlawful
holding by force within the meaning of ORS 105.110 and 105.123:
(A) When the tenant or person in
possession of any premises fails or refuses to pay rent within 72 hours or 144
hours, as the case may be, of the notice required by ORS 90.394.
(B) When a rental agreement by its terms
has expired and has not been renewed, or when the tenant or person in
possession remains in possession after a valid notice terminating the tenancy
pursuant to ORS chapter 90, or is holding contrary to any valid condition or
covenant of the rental agreement or ORS chapter 90.
(b) A landlord may not file an action for
the return of possession of a dwelling unit based upon a cause of unlawful holding
by force as described in paragraph (a) of this subsection until after the
expiration of a rental agreement for a fixed term tenancy or after the
expiration of the time period provided in a notice terminating the tenancy.
(3) In an action under subsection (2) of
this section, ORS chapter 90 shall be applied to determine the rights of the
parties, including:
(a) Whether and in what amount rent is
due;
(b) Whether a tenancy or rental agreement
has been validly terminated; and
(c) Whether the tenant is entitled to
remedies for retaliatory conduct by the landlord as provided by ORS 90.385 and
90.765. [Amended by 1973 c.559 §34; 1977 c.365 §1; 1981 c.753 §5; 1995 c.559 §45;
2001 c.596 §47; 2003 c.378 §19; 2005 c.391 §28; 2007 c.653 §1; 2009 c.569 §2; 2009
c.638 §1]
105.117
[2009 c.569 §1; renumbered 91.122 in 2011]
105.120
Notice necessary to maintain action in certain cases; waiver of notice; effect
of advance payments of rent. (1) As used
in this section, “rent” does not include funds paid under the United States
Housing Act of 1937 (42 U.S.C. 1437f).
(2) Except as provided in subsection (3)
of this section, an action for the recovery of the possession of the premises
may be maintained in cases provided in ORS 105.115 (1)(b), when the notice to
terminate the tenancy or to quit has been served upon the tenant or person in
possession in the manner prescribed by ORS 91.110 and for the period prescribed
by ORS 91.060 to 91.080 before the commencement of the action, unless the
leasing or occupation is for the purpose of farming or agriculture, in which
case the notice must be served for a period of 90 days before the commencement
of the action. Any person entering into the possession of real estate under
written lease as the tenant of another may, by the terms of the lease, waive
the giving of any notice required by this subsection.
(3) An action for the recovery of the
possession of a dwelling unit to which ORS chapter 90 applies may be maintained
in situations described in ORS 105.115 (2) when the notice to terminate the
tenancy or to quit has been served by the tenant upon the landlord or by the
landlord upon the tenant or person in possession in the manner prescribed by
ORS 90.155.
(4) Except when a tenancy involves a
dwelling unit subject to ORS chapter 90, the service of a notice to quit upon a
tenant or person in possession does not authorize an action to be maintained
against the tenant or person in possession for the possession of premises
before the expiration of any period for which the tenant or person has paid the
rent of the premises in advance.
(5) An action to recover possession of a
dwelling unit subject to ORS chapter 90 may not be brought or filed against a
tenant or person in possession based upon a notice under ORS 90.427 to
terminate the tenancy until after the expiration of any period for which the
tenant or person has paid the rent of the dwelling unit in advance, unless:
(a) The only other money paid by the
tenant was collected as a last month’s rent deposit as provided under ORS 90.300;
or
(b) The only unused rent was paid by the
tenant for a rental period extending beyond the termination date specified in a
valid outstanding notice to terminate the tenancy and the landlord refunded the
unused rent within six days after receipt by delivering the unused rent to the
tenant in person or by first class mailing. [Amended by 1973 c.559 §35; 1981
c.753 §6; 1983 c.303 §5; 1985 c.588 §13; 1989 c.506 §18; 1993 c.369 §15; 1995
c.559 §52; 1997 c.577 §31; 1999 c.603 §35; 1999 c.676 §26; 2007 c.906 §36]
105.121
Forms in action for possession of group recovery home; limitation on issues;
attorney fees. (1) A former tenant removed from a
group recovery home under ORS 90.440 may bring an action for injunctive relief
to recover possession if the removal was wrongful or in bad faith.
(2) An action under this section shall be
governed by the provisions of ORS 105.105 to 105.168 except that:
(a) The complaint shall be in
substantially the following form and shall be available from the court clerk:
______________________________________________________________________________
IN THE _________ COURT FOR
THE COUNTY OF ____________
(Tenant), )
)
Plaintiff(s), )
)
vs. ) No.___
)
(Landlord), )
)
Defendant(s). )
COMPLAINT FOR RETURN
OF POSSESSION OF A
DWELLING UNIT IN A
GROUP RECOVERY HOME
I
Defendant is a group recovery home subject
to ORS 90.440. Defendant removed plaintiff from the group recovery home
dwelling unit rented by plaintiff from defendant at:
______________(street
and number)
______________(city)
______________(county)
II
Notice of removal from the dwelling unit
was served on plaintiff under ORS 90.440. The notice of removal was served on:
______________(date)
III
Plaintiff is entitled to possession of the
dwelling unit because:
______Defendant removed plaintiff
wrongfully by failing to comply with the procedural requirements of ORS 90.440.
______Defendant removed plaintiff
wrongfully because plaintiff did not use or possess alcohol or illegal drugs
within seven days preceding delivery of a written notice of removal.
______Defendant removed plaintiff under
ORS 90.440 in bad faith.
Wherefore, plaintiff prays for possession
of the group recovery home dwelling unit and costs and disbursements incurred
herein.
________ _____________________
Date Signature
of Plaintiff(s)
______________________________________________________________________________
(b) The complaint shall be signed by the
plaintiff or an attorney representing the plaintiff as provided by ORCP 17 and
served by personal delivery on the group recovery home house president or a
person in an equivalent leadership position for the group recovery home.
(c) The answer shall be in substantially
the following form and shall be available from the court clerk:
______________________________________________________________________________
IN THE _________ COURT FOR
THE COUNTY OF ____________
(Tenant), )
)
Plaintiff(s), )
)
vs. ) No.___
)
(Landlord), )
)
Defendant(s). )
ANSWER
We deny that the plaintiff is entitled to
possession of the group recovery home dwelling unit that is the subject of the
complaint because:
______The defendant removed the plaintiff
in compliance with the procedural requirements of ORS 90.440.
______The plaintiff used or possessed
alcohol or illegal drugs as described in ORS 90.440 within seven days preceding
delivery of a written notice of removal.
______The defendant did not remove the
plaintiff in bad faith as alleged.
We ask that the plaintiff take nothing by
the complaint and that we be awarded our costs and disbursements.
________ _____________________
Date Signature
of Plaintiff(s)
______________________________________________________________________________
(d) The issue at trial shall be limited to
whether the plaintiff is entitled to possession of the dwelling unit described
in the complaint.
(e) If the basis for the complaint is that
removal was wrongful because the plaintiff did not use or possess alcohol or
illegal drugs, the defendant has the burden of proving that the plaintiff used
or possessed alcohol or illegal drugs as described in ORS 90.440 within seven
days preceding delivery of the written notice of removal.
(f) A claim for damages may not be
asserted by either party in the action for possession of the dwelling unit
under this section, but each party may pursue any claim for damages in a
separate action.
(g) A party may join an action for
possession of the dwelling unit with an action for damages or a claim for other
relief, but the proceeding is not governed by the provisions of ORS 105.105 to
105.168.
(h) If the court determines that the
plaintiff is entitled to possession of the dwelling unit that is the subject of
the complaint, the court shall enter an order directing the defendant to return
possession of the dwelling unit to the plaintiff. The court may provide that
the defendant have a period of time to deliver possession of the dwelling unit
to the plaintiff.
(i) Subject to the provisions of ORCP 68,
a prevailing party who has been represented by counsel may recover attorney
fees as provided by ORS 90.255. [2007 c.715 §5]
Note:
105.121 was added to and made a part of 105.105 to 105.168 by legislative
action but was not added to any smaller series therein. See Preface to Oregon
Revised Statutes for further explanation.
105.123
Complaint. In an action pursuant to ORS 105.110,
it is sufficient to state in the complaint:
(1) A description of the premises with
convenient certainty;
(2) That the defendant is in possession of
the premises;
(3) That, in the case of a dwelling unit
to which ORS chapter 90 does not apply, the defendant entered upon the premises
with force or unlawfully holds the premises with force; and
(4) That the plaintiff is entitled to the
possession of the premises. [2001 c.596 §4 (105.123, 105.124 and 105.126
enacted in lieu of 105.125); 2007 c.508 §12]
105.124
Form of complaint if ORS chapter 90 applies. For a
complaint described in ORS 105.123, if ORS chapter 90 applies to the dwelling
unit:
(1) The complaint must be in substantially
the following form and be available from the clerk of the court:
______________________________________________________________________________
IN THE CIRCUIT COURT
FOR THE COUNTY OF
______________
No. _____
RESIDENTIAL
EVICTION COMPLAINT
PLAINTIFF
(Landlord or agent):
__________________
__________________
Address: ______________
City: ______________
State:_________ Zip: ______
Telephone: _________
vs.
DEFENDANT
(Tenants/Occupants):
__________________
__________________
MAILING ADDRESS:
___________
City: ______________
State:_________ Zip: ______
Telephone: _________
1.
Tenants are in possession of the dwelling
unit, premises or rental property described above or located at:
___________________________________________
2.
Landlord is entitled to possession of the
property because of:
___ 24-hour notice for personal
injury, substantial damage,
extremely
outrageous act or unlawful occupant.
ORS 90.396 or 90.403.
___ 24-hour or 48-hour notice for
violation of a drug or alcohol
program. ORS 90.398.
___ 24-hour notice for perpetrating
domestic violence, sexual assault or
stalking. ORS 90.445.
___ 72-hour or 144-hour notice for
nonpayment of rent. ORS 90.394.
___ 7-day notice with stated cause in
a week-to-week tenancy. ORS 90.392
(6).
___ 10-day notice for a pet violation,
a repeat violation in a
month-to-month
tenancy or without stated cause in a
week-to-week tenancy. ORS 90.392
(5),
90.405 or 90.427 (2).
___ 20-day notice for a repeat violation.
ORS 90.630 (4).
___ 30-day, 60-day or 180-day notice without
stated cause in a month-to-month
tenancy. ORS 90.427 (3) or (4) or
90.429.
___ 30-day notice with stated cause.
ORS 90.392, 90.630 or 90.632.
___ Notice to bona fide tenants after
foreclosure sale or termination of
fixed term tenancy after foreclosure
sale. ORS 86.755 (6)(c).
___ Other notice _________
___ No notice (explain) _________
A
COPY OF THE NOTICE RELIED UPON, IF ANY, IS ATTACHED
3.
If the landlord uses an attorney, the case
goes to trial and the landlord wins in court, the landlord can collect attorney
fees from the defendant pursuant to ORS 90.255 and 105.137 (3).
Landlord requests judgment for possession
of the premises, court costs, disbursements and attorney fees.
I certify that the allegations and factual
assertions in this complaint are true to the best of my knowledge.
__________________
Signature
of landlord or agent.
______________________________________________________________________________
(2) The complaint must be signed by the
plaintiff or an attorney representing the plaintiff as provided by ORCP 17, or
verified by an agent or employee of the plaintiff or an agent or employee of an
agent of the plaintiff.
(3) A copy of the notice relied upon, if
any, must be attached to the complaint. [2001 c.596 §5 (105.123, 105.124 and
105.126 enacted in lieu of 105.125); 2005 c.22 §80; 2005 c.391 §29; 2007 c.508 §13;
2009 c.431 §3; 2011 c.510 §3]
Note:
Section 8, chapter 510, Oregon Laws 2011, provides:
Sec.
8. Notwithstanding the amendments to ORS
105.124 and 105.126 by sections 3 and 4 of this 2011 Act, for the purpose of
exhausting existing supplies of the complaint forms modified pursuant to the
amendments to ORS 105.124 and 105.126 by sections 3 and 4 of this 2011 Act,
complaint forms satisfying the requirements of ORS 105.124 or 105.126, as in
effect on January 2, 2011, may be used until January 2, 2012. [2011 c.510 §8]
105.125
[Amended by 1975 c.256 §9; 1981 c.753 §7; 1993 c.369 §16; 1995 c.559 §47; 1997
c.577 §32; repealed by 2001 c.596 §3 (105.123, 105.124 and 105.126 enacted in
lieu of 105.125)]
105.126
Form of complaint if ORS chapter 90 does not apply.
For a complaint described in ORS 105.123, if ORS chapter 90 does not apply to
the premises:
(1) The complaint must be in substantially
the following form and be available from the clerk of the court:
______________________________________________________________________________
IN
THE CIRCUIT COURT
FOR
THE COUNTY OF
_________
EVICTION
COMPLAINT
(Tenancy
not covered by ORS chapter 90)
No.
_____
(Landlord),
Plaintiff(s)
vs.
(Tenant),
Defendant(s)
1.
Defendant is in possession of the
following premises:
__________________
__________________(city)
2.
Defendant entered upon the premises with
force or is unlawfully holding the premises with force.
3.
Plaintiff is entitled to possession of the
premises, because:
_____ 30-day notice (month-to-month
tenancy)
_____ 30-day notice (cause)
_____ Notice to bona fide tenants after
foreclosure sale or
termination of
fixed term tenancy after
foreclosure
sale. ORS 86.755 (6)(c).
_____ Other notice (explain) ________
_____ No notice (explain) _________
A COPY OF ANY NOTICE RELIED UPON IS
ATTACHED
Wherefore, plaintiff prays for possession
of the premises, costs and disbursements and attorney fees, if applicable.
__________________
Plaintiff
______________________________________________________________________________
(2) A copy of the notice relied upon, if
any, must be attached to the complaint. [2001 c.596 §6 (105.123, 105.124 and 105.126
enacted in lieu of 105.125); 2003 c.378 §20; 2011 c.510 §4]
Note:
See note under 105.124.
105.128
Landlord action to remove perpetrator of domestic violence, sexual assault or
stalking from possession of dwelling unit; retention of possession by victim.
In an action for possession of a dwelling unit to which ORS chapter 90 applies:
(1) If the defendant raises a defense
under ORS 90.449 based upon the defendant’s status as a victim of domestic
violence, sexual assault or stalking and the perpetrator is a tenant of the
dwelling unit, the court may issue an order terminating the tenancy of the
perpetrator and ordering the perpetrator to vacate the dwelling unit without
terminating the tenancy of the other tenants and without awarding possession to
the plaintiff.
(2) If the action is based upon a notice
terminating the tenancy of a perpetrator under ORS 90.445, the court may issue
an order upholding the termination of the perpetrator’s tenancy and ordering
the perpetrator to vacate the dwelling unit without the tenancy of the other
tenants being terminated and without awarding possession to the plaintiff.
(3) If a court issues an order described
in subsection (1) or (2) of this section, the court may enter judgment in favor
of the plaintiff against the perpetrator. The plaintiff may enforce the
judgment against the perpetrator as provided in ORS 105.151, but may not
enforce the judgment against any other tenant of the dwelling unit. The sheriff
shall remove only the perpetrator from the dwelling unit. The sheriff may not
return possession of the dwelling unit to the plaintiff. [2007 c.508 §6]
Note:
105.128 was added to and made a part of 105.105 to 105.168 by legislative
action but was not added to any smaller series therein. See Preface to Oregon
Revised Statutes for further explanation.
105.130
How action conducted; fees. (1) Except as provided in this
section and ORS 105.135, 105.137 and 105.140 to 105.161, an action pursuant to
ORS 105.110 shall be conducted in all respects as other actions in courts of
this state.
(2) Upon filing a complaint in the case of
a dwelling unit to which ORS chapter 90 applies, the clerk shall:
(a) Collect a filing fee of $75;
(b) Collect any other fee authorized by
law or ordinance; and
(c) With the assistance of the plaintiff
or an agent of the plaintiff, complete the applicable summons and provide to
the plaintiff or an agent of the plaintiff sufficient copies of the summons and
complaint for service.
(3) The court shall collect a filing fee
of $75 from a defendant that demands a trial under this section.
(4) An action pursuant to ORS 105.110
shall be brought in the name of a person entitled to possession as plaintiff.
The plaintiff may appear in person or through an attorney. In an action to
which ORS chapter 90 applies, the plaintiff may also appear through a
nonattorney who is an agent or employee of the plaintiff or an agent or
employee of an agent of the plaintiff.
(5) Notwithstanding ORS 9.160, 9.320 and
ORS chapter 180, a state agency may appear in an action brought pursuant to ORS
105.110 through an officer or employee of the agency if:
(a) The Attorney General consents to the
representation of the agency by an officer or employee in the particular action
or in the class of actions that includes the particular action; and
(b) The agency, by rule, authorizes an
officer or employee to appear on its behalf in the particular type of action
being conducted.
(6) An action brought under ORS 105.110 by
a person entitled to possession of premises on the basis of circumstances
described in ORS 105.115 (1)(d), (e) or (f) is subject to the filing fees and
other court or sheriff fees applicable to an action concerning a dwelling unit
that is subject to ORS chapter 90. The procedure under ORS 105.105 to 105.168
that is applicable to an action concerning a dwelling unit subject to ORS
chapter 90 shall also apply to an action brought under ORS 105.115 (1)(d), (e)
or (f), except that the complaint must be in the form prescribed in ORS
105.126. [Amended by 1975 c.256 §10; 1977 c.877 §15; 1979 c.284 §94; 1981 c.753
§10; 1983 c.581 §1; 1985 c.588 §16; 1987 c.829 §5; 1991 c.92 §1; 1993 c.369 §17;
1995 c.273 §17; 1997 c.801 §34; 2003 c.737 §§47,48; 2005 c.702 §§53,54,55; 2007
c.493 §§8,18b; 2007 c.860 §8; 2009 c.638 §2; 2011 c.595 §55]
105.132
Assertion of counterclaim. No person named as a defendant
in an action brought under ORS 105.105 to 105.168 may assert a counterclaim
unless the right to do so is otherwise provided by statute. [1985 c.244 §2]
105.135
Service and return of summons; posting; contents; use of facsimile.
(1) Except as provided in this section, the summons shall be served and
returned as in other actions.
(2) At the time the clerk collects the
filing fee under ORS 105.130, the clerk shall enter the first appearance date
on the summons. That date shall be seven days after the judicial day next
following payment of filing fees unless no judge is available for first
appearance at that time, in which case the clerk may extend the first
appearance date for up to seven additional days. At the request of the
plaintiff, the clerk may enter a date more than seven days after the judicial
day next following payment of filing fees if a judge will be available.
(3) Notwithstanding ORCP 10, by the end of
the judicial day next following the payment of filing fees:
(a) The clerk shall mail a true copy of
the summons and complaint by first class mail to the defendant at the premises.
(b) The process server shall serve the
defendant with a true copy of the summons and complaint at the premises by
personal delivery to the defendant or, if the defendant is not available for
service, by attaching a true copy of the summons and complaint in a secure
manner to the main entrance to that portion of the premises of which the defendant
has possession.
(4) A sheriff may serve a facsimile of a
certified true copy of a summons and complaint that is transmitted to the
sheriff by a trial court administrator or another sheriff using a telephonic
facsimile communication device. A copy of the facsimile must be attached to the
sheriff’s return of service. Before transmitting a summons and complaint to a
sheriff under this subsection, the person sending the facsimile must receive
confirmation by telephone from the sheriff’s office that a telephonic facsimile
communication device is available and operating.
(5) The process server shall indicate the
manner in which service was accomplished by promptly filing with the clerk a
certificate of service as provided by ORCP 7 F(2)(a).
(6) In the case of premises to which ORS
chapter 90 applies, the summons shall inform the defendant of the procedures,
rights and responsibilities of the parties as specified in ORS 105.137. [Amended
by 1975 c.256 §11; 1977 c.327 §1; 1979 c.854 §2; 1981 c.753 §11; 1983 c.303 §6;
1983 c.581 §3; 1985 c.588 §14; 1995 c.559 §48; 1997 c.577 §33; 2007 c.255 §3]
105.137
Effect of failure of party to appear; attorney fees; judgment of dismissal;
scheduling of trial; unrepresented defendant. In the
case of a dwelling unit to which ORS chapter 90 applies:
(1) If the plaintiff appears and the
defendant fails to appear at the first appearance, a default judgment shall be
entered in favor of the plaintiff for possession of the premises and costs and
disbursements.
(2) If the defendant appears and the
plaintiff fails to appear at the first appearance, a default judgment shall be
entered in favor of the defendant dismissing the plaintiff’s complaint and
awarding costs and disbursements.
(3) An attorney at law shall be entitled
to appear on behalf of any party, but attorney fees may not be awarded to the
plaintiff if the defendant does not contest the action.
(4) If the plaintiff dismisses the action
before the first appearance, a judgment of dismissal shall be entered in favor
of the defendant dismissing the plaintiff’s complaint and awarding costs and
disbursements. The defendant may not recover attorney fees for prejudgment
legal services provided after the delivery of written notice of the dismissal
by the plaintiff to the defendant, or to an attorney for the defendant, in the
manner provided under ORS 90.155.
(5) The plaintiff or an agent of the
plaintiff may obtain a continuance of the action for as long as the plaintiff
or the agent of the plaintiff deems necessary to obtain the services of an
attorney at law.
(6) If both parties appear in court on the
date contained in the summons, the court shall set the matter for trial as soon
as practicable, unless the court is advised by the parties that the matter has
been settled. The trial shall be scheduled no later than 15 days from the date
of such appearance. If the matter is not tried within the 15-day period, and
the delay in trial is not attributable to the landlord, the court shall order
the defendant to pay rent that is accruing into court, provided the court finds
after hearing that entry of such an order is just and equitable.
(7)(a) The court shall permit an
unrepresented defendant to proceed to trial by directing the defendant to file
an answer in writing on a form which shall be available from the court clerk,
and to serve a copy upon the plaintiff on the same day as first appearance.
(b) The answer shall be in substantially
the following form:
______________________________________________________________________________
IN THE _________ COURT FOR
THE COUNTY OF ____________
(Landlord), )
)
Plaintiff(s), )
)
vs. ) No.___
)
(Tenant), )
)
Defendant(s). )
ANSWER
I (we) deny that the plaintiff(s) is
(are) entitled to possession because:
__ The landlord did not make repairs.
List any repair problems: ________
________________________
________________________
__ The landlord is attempting to evict me
(us) because of my (our) complaints (or the eviction is otherwise retaliatory).
__ The landlord is attempting to evict me
because of my status as a victim of domestic violence, sexual assault or
stalking.
__ The eviction notice is wrong.
__ List any other defenses: _________
________________________
________________________
________________________
________________________
I (we) may be entitled as the
prevailing party to recover attorney fees from plaintiff(s) if I (we) obtain
legal services to defend this action pursuant to ORS 90.255.
I (we) ask that the plaintiff(s) not
be awarded possession of the premises and that I (we) be awarded my (our) costs
and disbursements and attorney fees, if applicable, or a prevailing party fee.
________ _____________________
Date Signature
of defendant(s)
______________________________________________________________________________
(8) If an unrepresented defendant files an
answer as provided in subsection (7) of this section, the answer may not limit
the defenses available to the defendant at trial under ORS chapter 90. If such
a defendant seeks to assert at trial a defense not fairly raised by the answer,
the plaintiff shall be entitled to a reasonable continuance for the purposes of
preparing to meet the defense. [1975 c.256 §13; 1979 c.765 §5; 1979 c.854 §3;
1981 c.753 §12; 1989 c.506 §19; 1997 c.577 §34; 2005 c.391 §33; 2007 c.508 §14]
105.138
Compelling arbitration; procedure. (1)
Notwithstanding ORS 105.137 (6), if a party to an action to which ORS 90.505 to
90.840 apply moves for an order compelling arbitration and abating the
proceedings, the court shall summarily determine whether the controversy
between the parties is subject to an arbitration agreement enforceable under
ORS 90.610 (2) and, if so, shall issue an order compelling the parties to
submit to arbitration in accordance with the agreement and abating the action
for not more than 30 days, unless the parties agree to an order of abatement
for a longer period acceptable to the court.
(2) If the court issues an order
compelling arbitration under subsection (1) of this section, the court may not
order the payment of rent into court pending the arbitration unless the court
finds such an order is necessary to protect the rights of the parties. [1989
c.918 §7; 1991 c.844 §20; 1995 c.559 §46; 2001 c.596 §49a; 2007 c.508 §15]
105.139
Burden of proof in certain cases. If a landlord
brings an action for possession under ORS 90.403 and the person in possession
contends that the tenant has not vacated the premises, the burden of proof is
on the defendant as to that issue. [1983 c.303 §3; 1993 c.369 §34; 2003 c.378 §21;
2005 c.22 §81; 2005 c.391 §30]
105.140
Continuance. No continuance shall be granted to a
defendant for a longer period than two days unless:
(1) The defendant gives an undertaking to
the adverse party with good and sufficient security, to be approved by the
court, conditioned for the payment of the rent that may accrue if judgment is
rendered against the defendant; or
(2) In an action for the recovery of the
possession of a dwelling unit to which ORS chapter 90 applies, the court orders
a defendant to pay rent into court as it becomes due from the commencement of
the action until entry of a general judgment in the action. If a defendant
fails to pay rent into court as ordered under this subsection, the action shall
be tried forthwith. [Amended by 1973 c.559 §36; 1977 c.365 §2; 1979 c.854 §4;
2003 c.576 §237]
105.145
Judgment on trial by court; duties of parties to stipulated agreement.
(1) If an action is tried by the court without a jury, and after hearing the
evidence the court concludes that the complaint is not true, the court shall
enter judgment against the plaintiff for costs and disbursements. If the court
finds the complaint true or if judgment is rendered by default, the court shall
render a general judgment against the defendant and in favor of the plaintiff,
for restitution of the premises and the costs and disbursements of the action.
If the court finds the complaint true in part, the court shall render judgment
for the restitution of such part only, and the costs and disbursements shall be
taxed as the court deems just and equitable.
(2) If, as a result of a court-sponsored
or other mediation or otherwise, the plaintiff and defendant agree, in the
manner provided by ORCP 67 F for judgment by stipulation, that the defendant
shall perform in a certain manner or that the plaintiff shall be paid moneys
agreed to be owing by the defendant and that as a result of that performance or
payment the defendant shall retain possession of the premises, including
retention of possession contingent upon that performance or payment of moneys
by the defendant by a certain date, the court shall enter an order or judgment
to that effect. In addition, if the plaintiff and defendant agree that the
plaintiff shall perform in a certain manner or pay moneys to the defendant by a
certain date, the court shall enter an order or judgment to that effect.
(3) If, as provided by subsection (2) of
this section, the parties enter an order or judgment by stipulation that
requires the defendant to perform in a certain manner or make a payment by a
certain date and the defendant later demonstrates compliance with the
stipulation, the court shall enter a judgment of dismissal in favor of the
defendant. [Amended by 1997 c.577 §35; 1999 c.603 §36; 2003 c.378 §22]
105.146
Failure of defendant to perform as ordered; judgment of restitution.
(1) In an action to recover possession of the premises, if the court has
entered an order by stipulation that provides for the defendant to retain
possession of the premises contingent upon the defendant’s performance or
payment of moneys by a certain date as provided under ORS 105.145 (2), and the
defendant fails to comply with the order, the plaintiff may obtain and enforce
a judgment of restitution of the premises pursuant to this section and ORS
105.148 and 105.149.
(2) A plaintiff may obtain and enforce a
judgment of restitution based upon an order entered as provided under ORS
105.145 (2), provided the order includes only:
(a) Future performance or conduct as
described in the order for a period of not more than six months following entry
of the order;
(b) Payment of past due rent and other
past due amounts pursuant to a schedule provided in the order for a period of
not more than six months following entry of the order;
(c) Payment of rent due for future rental
periods that follow entry of the order pursuant to a schedule provided in the
order for not more than the first three monthly rental periods following entry
of the order; and
(d) Payment of any costs, disbursements or
attorney fees pursuant to a schedule provided in the order.
(3) The order shall contain a statement
providing that 12 months following the entry of the order, the court shall
automatically dismiss the order without further notice to either the plaintiff
or the defendant.
(4) If the defendant fails to comply with
the order, the plaintiff may file with the clerk of the court an affidavit or
declaration of noncompliance describing how the defendant has failed to comply.
The plaintiff shall attach a copy of the order to the affidavit or declaration.
The affidavit or declaration, or the order, must include the terms of the
underlying settlement agreement or stipulation or have a copy of the agreement
attached.
(5) Upon receipt of a plaintiff’s
affidavit or declaration:
(a) The court shall enter a judgment of
restitution; and
(b) The clerk shall issue a notice of
restitution as provided by ORS 105.151 and attach to the notice a copy of the
plaintiff’s affidavit or declaration of noncompliance and any attachments for
service.
(6) The court shall establish a procedure
that allows the defendant to request a hearing on the plaintiff’s affidavit or
declaration of noncompliance and delay expiration of the notice of restitution
period or execution upon a judgment of restitution pending the hearing.
(7) The court shall enter a judgment
dismissing the plaintiff’s action in favor of the defendant without assessment
of costs, disbursements, prevailing party fee or attorney fees against either
party except as provided in the order and without further notice to either
party:
(a) Upon receipt of a writing signed by
the plaintiff showing compliance with or satisfaction of the order; or
(b) Twelve months following entry of the
order, unless the plaintiff has filed an affidavit or declaration of
noncompliance and the court has found in favor of the plaintiff on the
affidavit or declaration. [2001 c.596 §10 (105.146, 105.148 and 105.149 enacted
in lieu of 105.147); 2003 c.378 §23; 2007 c.508 §16]
Note:
105.146 to 105.149 were added to and made a part of 105.105 to 105.168 by
legislative action but were not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.
105.147
[1999 c.603 §4; repealed by 2001 c.596 §9 (105.146, 105.148 and 105.149 enacted
in lieu of 105.147)]
105.148
Contesting plaintiff’s affidavit or declaration of noncompliance; ex parte
review of hearing request; delaying execution upon judgment of restitution.
(1)(a) To contest a plaintiff’s affidavit or declaration of noncompliance under
ORS 105.146 and delay expiration of the notice of restitution period or
execution upon the judgment of restitution, a defendant shall file a request
for hearing with the clerk of the court. The request must be filed prior to
issuance by the clerk of a writ of execution of judgment of restitution and
must include a statement by the defendant describing how the defendant complied
with the order or describing why the defendant should not be required to
comply.
(b) A court may, as part of the procedure
authorized by ORS 105.146 (6), require that a defendant submit a hearing
request to the court for ex parte review prior to the defendant’s filing the
request with the clerk. If the court provides for ex parte review, the ex parte
review must be available every judicial day for appearance by the defendant
before the court within the time period between service of the notice of
restitution and the date of expiration of the notice of restitution. The notice
of restitution must include or have attached to it a description of the
requirements for appearing before the court for ex parte review and a copy of
the hearing request form. The court may not require that the defendant notify
the plaintiff of the defendant’s intention to appear before the court. If, after
hearing the defendant at the ex parte review, the court finds that the reasons
given by the defendant for opposing the plaintiff’s affidavit or declaration of
noncompliance do not relate to the issues listed in ORS 105.149 (2), the court
shall deny the request for a hearing.
(2) The clerk shall make available a
document providing for a request for hearing by a defendant. The document must
be in substantially the following form:
______________________________________________________________________________
IN THE CIRCUIT COURT
FOR THE COUNTY OF
_________
Defendant’s Request for Hearing
to
Contest an Affidavit or
Declaration
of Noncompliance
Case No. _____
Landlord or
agent (Plaintiff):
__________________
vs.
Tenant/Occupant
(Defendant):
__________________
Address of
Property:
__________________
__________________
1. My landlord has filed a statement with
the court saying that I have not complied with a court-approved agreement and
that as a result my landlord is entitled to possession of the property.
2. I deny the landlord is entitled to
possession of the property because (The reason must be one of the following.
You must check one or more of these responses and you must explain in section
3.):
_____a. The landlord is wrong. As
explained below, I did comply with the agreement.
_____b. Before I could comply with the
agreement, the landlord was supposed to do what is explained below, which the
landlord did not do.
_____c. The landlord and I changed the
agreement and I complied with the agreement as changed. The change we agreed to
is explained below.
_____d. The landlord prevented me from
keeping the agreement. The way the landlord did that is explained below.
_____e. The agreement was not made in good
faith as required by ORS 90.130. The lack of good faith is explained below.
_____f. The portion of the agreement
described below was unconscionable as described in ORS 90.135.
_____g. The landlord is required by law or
contract to have good cause to force me to move out and my alleged conduct or performance
does not meet the standard of good cause, as explained below.
_____h. The landlord is claiming I did not
pay rent for a period of time following the date of the agreement. I did not
pay that rent because I have claims for money against the landlord to offset
the rent. Those claims arise from the landlord’s violation of the Residential
Landlord and Tenant Act or the rental agreement since the date of the court
order and are explained below.
3. Here is my explanation for the reason
or reasons checked above:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
4. I understand that if I lose in court, I
may be responsible for the landlord’s costs, disbursements, any attorney fees
and a prevailing party fee.
I hereby declare that the above statement
is true to the best of my knowledge and belief, and that I understand it is
made for use as evidence in court and is subject to penalty for perjury.
_______________
(Signature
of tenant)
Date:
________
______________________________________________________________________________
(3) As an alternative to the document
described in subsection (2) of this section, a defendant may request a hearing
by use of a notarized affidavit. [2001 c.596 §11 (105.146, 105.148 and 105.149
enacted in lieu of 105.147); 2003 c.378 §24; 2005 c.391 §35; 2007 c.508 §17]
Note:
See note under 105.146.
105.149
Hearing on compliance with order. (1) Upon
receipt of a timely filed request for hearing described in ORS 105.148, the
clerk of the court:
(a) Shall schedule a hearing on the
defendant’s request as soon as practicable;
(b) Shall notify both parties of the
hearing date;
(c) Shall mail or send by facsimile a copy
of the defendant’s request to the plaintiff; and
(d) May not issue a writ of execution of
judgment of restitution pending the hearing.
(2)(a) At the hearing, except as provided
in paragraph (b) of this subsection, the court may consider only the following
issues:
(A) Whether the defendant complied with
the order.
(B) Whether the plaintiff complied with
any requirement of the order that is a predicate to compliance by the
defendant.
(C) Whether the parties agreed to modify
the order and complied with the modified order.
(D) Whether one party unfairly prevented
compliance by the other party.
(b) If ORS chapter 90 applies to a
dwelling unit, in addition to the issues described in paragraph (a) of this
subsection, the court may consider the following issues:
(A) Whether the stipulated agreement was
entered into in good faith as required by ORS 90.130 or is unconscionable as
described in ORS 90.135.
(B) Whether, for a defendant whose
noncompliance concerns performance or conduct, the noncompliance constitutes
good cause for purposes of an applicable law or contract that requires the
plaintiff to have good cause for terminating the tenancy.
(C) Whether, for a defendant whose
noncompliance concerns a failure to pay rent due for future rental periods
pursuant to ORS 105.146 (2)(c), the defendant has claims against the plaintiff
for moneys that offset the rent. The defendant’s claims must be pursuant to ORS
chapter 90 or the rental agreement and must have arisen after the entry of the
order.
(c) The defendant may not raise defenses
or claims involving issues other than issues described in paragraphs (a) and
(b) of this subsection.
(3) If the court finds in favor of the
plaintiff after the hearing, the clerk may issue a writ of execution of
judgment of restitution. If the defendant did not appear at the hearing, the
clerk may issue the writ immediately. If the defendant did appear, the clerk
may issue the writ no earlier than 24 hours after the court’s ruling. Further
notice to the defendant is not required.
(4) If the court finds in favor of the
defendant after the hearing, the court shall set aside the judgment. The court
may reinstate the order, terminate the order and enter a judgment dismissing
the plaintiff’s action in favor of the defendant, enter a new order or schedule
a trial on the plaintiff’s action as soon as practicable. [2001 c.596 §12
(105.146, 105.148 and 105.149 enacted in lieu of 105.147); 2003 c.378 §25; 2005
c.391 §36]
Note:
See note under 105.146.
105.150
[Repealed by 1989 c.506 §20]
105.151
Enforcement of judgment of restitution; notice of restitution.
(1) If the court renders judgment for restitution of the premises to the
plaintiff, the plaintiff may only enforce that judgment in the following
manner:
(a) Issuance by the clerk of the court and
service upon the defendant of a notice of restitution that shall give the
defendant four days to move out of the premises, including removal of all
personal property; and
(b) After the expiration of the four-day
period provided in the notice of restitution, issuance by the clerk of the
court and service by the sheriff upon the defendant of a writ of execution of
judgment of restitution, directing the sheriff to enforce the judgment by
removing the defendant and by returning possession of the premises to the
plaintiff, along with an eviction trespass notice from the sheriff.
(2) Following entry of judgment for
restitution of the premises in favor of a plaintiff, or any date for possession
as specified in the judgment, whichever is later, the plaintiff may request
that the clerk of the court in which the judgment is entered issue a notice of
restitution. The notice of restitution shall order the defendant to move out of
the premises, including removing all personal property, in no less than four
days. The plaintiff may direct the clerk to extend the notice period beyond
four days. Following payment of any required fees, the clerk shall issue the
notice.
(3) This section does not prevent a
landlord in a tenancy to which ORS chapter 90 does not apply from exercising a
right of entry provided by law and described in ORS 105.105 in order to recover
possession of the premises, provided that the right of entry is stated in the
rental agreement between the parties. [2001 c.596 §14 (105.151, 105.152,
105.153, 105.156, 105.157, 105.158, 105.159 and 105.161 enacted in lieu of
105.154); 2003 c.378 §26]
105.152
Form of notice of restitution for judgment entered under ORS 105.146.
If the court entered a judgment pursuant to ORS 105.146, a notice of
restitution issued by the clerk of the court pursuant to ORS 105.151 must be in
substantially the following form:
______________________________________________________________________________
IN THE CIRCUIT COURT FOR
THE COUNTY OF _________
Notice of Restitution
because of not complying
with a court-approved agreement
Case Number ______
TO: _____________________
(Tenant/Defendant)
___________________________
(Address of
rental property)
You and your landlord made a
court-approved agreement allowing you to stay in the property. Your landlord
claims that you have not kept that agreement. (A copy of the landlord’s claim
is attached.) Unless you can prove to the court why you should not have to move
out, you must move by the MOVE OUT DATE listed below. If you do not, the
landlord can have the Sheriff physically remove you.
If you believe that you have kept the
agreement or that you have a legal reason for not keeping the agreement, you
are entitled to a court hearing. Legal reasons are listed in ORS 105.148 and
105.149. They include the landlord interfering with your effort to keep the
agreement and your complying with a modification of the agreement made by you
and your landlord.
To request a hearing, you must go to the
court and complete a form explaining why you believe that you have kept (or
should not be required to keep) the agreement. You have to do this before _____
a.m./p.m. on_________. The Sheriff will not physically remove you from the
property before the hearing.
If the judge rules against you at the
hearing, the landlord can have the Sheriff physically remove you.
DEADLINE TO MOVE OUT
MOVE OUT DATE: _________
If you do not request a hearing, you must
move out of the property no later than 11:59 p.m. on the Move Out Date.
If you and everyone else living there do
not move out by that time, the Sheriff will physically remove you. You must
also move all of your belongings by that time. Anything you leave behind will
be stored or disposed of as allowed by law.
__________________
Deputy
Court Administrator
______________________________________________________________________________
[2001 c.596 §15 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159
and 105.161 enacted in lieu of 105.154); 2003 c.378 §27]
105.153
Form of notice of restitution for judgment not entered under ORS 105.146.
If a court entered a judgment other than pursuant to ORS 105.146, a notice of
restitution issued by the clerk of the court pursuant to ORS 105.151 must be in
substantially the following form:
______________________________________________________________________________
In the Circuit Court for the
County of _________
NOTICE OF RESTITUTION
Case Number _________
TO:
__________________
(Defendant/Tenant)
___________________________
___________________________
___________________________
(Address
of property)
DEADLINE TO MOVE OUT
MOVE OUT DATE: _________
The Court has ordered you to move out of
the property. You must move out no later than 11:59 p.m. on the Move Out Date.
If you and everyone else living there do
not move out by that time, the Sheriff will physically remove you. You must
also move all of your belongings by that time. Anything you leave behind will
be stored or disposed of as allowed by law.
________________________
Deputy
Court Administrator
_____________________________________________________________________________
[2001 c.596 §16 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159
and 105.161 enacted in lieu of 105.154)]
105.154
[1995 c.559 §50 (enacted in lieu of 105.155); 1995 c.658 §70a; 1997 c.577 §§36,37;
1999 c.603 §37; repealed by 2001 c.596 §13 (105.151, 105.152, 105.153, 105.156,
105.157, 105.158, 105.159 and 105.161 enacted in lieu of 105.154)]
105.155
[Amended by 1979 c.765 §6; 1985 c.588 §15; 1993 c.369 §27; repealed by 1995
c.559 §49 (105.154 enacted in lieu of 105.155)]
105.156
Form of writ of execution for judgment of restitution.
The writ of execution of judgment of restitution referred to in ORS 105.151
must be in substantially the following form:
______________________________________________________________________________
State of
Oregon, ) WRIT OF
) ss. EXECUTION
OF
) JUDGMENT
OF
) RESTITUTION
County of_____ )
To
the Sheriff:
This was an eviction action for possession
of the following premises:
______________________
______________________(city)
______________________(county)
Judgment was entered that the plaintiff
have restitution of the premises and that the plaintiff may be entitled to
court costs and disbursements.
In the name of the State of Oregon, you
are ordered to enforce and serve this writ on the defendant, in the manner
provided in ORS 105.161.
You are ordered to enter the premises and
remove the defendant and any other individual present on the premises who is
subject to the judgment and return possession of the premises to the plaintiff.
You may use all reasonable force that may be necessary to enter the premises
and remove individuals who are subject to the judgment.
The plaintiff shall be responsible for
removing, storing and disposing of any personal property left by the defendant
on the premises following the removal of the defendant and the return of
possession of the premises, as provided by ORS 105.165.
DATED
this ___ day of______,___.
__________________
Deputy
Court Administrator
__________________
Plaintiff
__________________
Address
__________________
City/State/Zip
______________________________________________________________________________
[2001 c.596 §17 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159
and 105.161 enacted in lieu of 105.154); 2003 c.378 §29; 2005 c.391 §37; 2007
c.255 §4]
105.157
Form of eviction trespass notice. The eviction
trespass notice referred to in ORS 105.151 must be in substantially the
following form:
______________________________________________________________________________
EVICTION TRESPASS NOTICE
Occupants of these premises
located at:
__________________
__________________
__________________
have
been evicted by an order of the court in ___________ vs.___________, Case
Number_________.
Trespassing or entering into or upon these
premises without written consent of the landlord will result in arrest and
prosecution.
Any personal property present on these
premises at the time this notice was served, (date)_______________, is in the
possession of the landlord and may be redeemed by contacting the landlord at:
____________________________________________
____________________________________________
____________________________________________
DATED
_______________
_______________
SHERIFF
______________________________________________________________________________
[2001 c.596 §18 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159
and 105.161 enacted in lieu of 105.154); 2003 c.378 §30]
105.158
Service of notice of restitution. (1) For
purposes of this section, “process server” means any competent person 18 years
of age or older who:
(a) Is a resident of the State of Oregon;
(b) Is not the plaintiff, a relative of
the plaintiff or an agent of the plaintiff for purposes of management of the
premises;
(c) Is a person regularly employed in the
business of serving process; and
(d) Charges a fee no greater than that set
by ORS 21.300 (1)(a) for service of the notice of restitution.
(2) The sheriff or a process server shall
serve the notice of restitution under ORS 105.152 or 105.153 in the manner
provided by this subsection. Notwithstanding ORCP 10, by the end of the next
judicial day following the payment of fees:
(a) The sheriff or process server shall
mail a copy of the notice of restitution by first class mail to the defendant
at the premises; and
(b) The sheriff or process server shall
serve the notice of restitution at the premises by personal delivery to the
defendant or, if the defendant is not available for service, by attaching a
copy of the notice in a secure manner to the main entrance to that portion of
the premises of which the defendant has possession.
(3) If service of the notice of restitution
is made by a process server, by the end of the next judicial day following
service the process server shall file with the clerk of the court a certificate
of service in the same manner as provided by ORCP 7 F(2)(a). [2001 c.596 §19
(105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and 105.161
enacted in lieu of 105.154); 2003 c.304 §8]
105.159
Computation of time before plaintiff may request writ of execution.
(1) Notwithstanding ORCP 10, the four-day period specified in ORS 105.151 (2)
shall:
(a) Commence at 12:01 a.m. on the day
following mailing and service of the notice of restitution pursuant to ORS
105.158, including a Saturday or a Sunday or other legal holiday; and
(b) End on the fourth calendar day
following the mailing and service except that if the fourth day is a Saturday
or a Sunday or other legal holiday, the period shall end at 12 midnight of the
day preceding the next judicial day.
(2) Except as provided in subsection (3)
of this section, at any time after the expiration of the period provided in the
notice of restitution, the plaintiff may request that the clerk of the court
issue a writ of execution of judgment of restitution directing the sheriff to
enforce the judgment of restitution by returning possession of the premises to
the plaintiff. Following payment of any required fees, the clerk shall issue
the writ in substantially the form provided by ORS 105.156.
(3) Unless the judgment otherwise
provides, the clerk may not issue a notice of restitution or a writ of execution
of judgment of restitution more than 60 days after the judgment is entered or
after any date for possession as specified in the judgment, whichever is later.
[2001 c.596 §20 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159
and 105.161 enacted in lieu of 105.154)]
105.160
[Repealed by 1977 c.365 §3 and 1977 c.416 §5]
105.161
Service and enforcement of writ of execution and eviction trespass notice.
(1) Following issuance of the writ of execution of judgment of restitution and
payment of any fees required by the sheriff, the sheriff shall immediately
enforce and serve the writ upon the defendant, along with the eviction trespass
notice, as follows:
(a) The sheriff shall mail a copy of the
writ and the eviction trespass notice by first class mail to the defendant at
the premises;
(b) The sheriff shall serve the writ and
the eviction trespass notice at the premises by personal delivery to the
defendant or, if the defendant is not available for service, by attaching the
writ and notice in a secure manner to the main entrance to that portion of the
premises of which the defendant has possession;
(c) Immediately following the service of
the writ and the eviction trespass notice, the sheriff shall return possession
of the premises to the plaintiff by removing the defendant or any other person
subject to the judgment; and
(d) Following the sheriff’s removal of the
defendant and return of possession of the premises to the plaintiff, the
plaintiff shall be responsible for removing, storing and disposing of any
personal property left by the defendant on the premises, as provided by ORS
105.165.
(2) Following issuance of the writ, at the
plaintiff’s request, the sheriff shall delay enforcement and service of the
writ.
(3) Any writ not enforced and served
within 30 days following issuance expires and becomes unenforceable unless the
court extends the operation of the writ before the writ expires based on a
showing of good cause by the sheriff. If the court extends the operation of a
writ under this subsection, the sheriff shall promptly notify the plaintiff of
the extension.
(4) A judgment may not be enforced if the
parties have entered a new rental agreement or if the plaintiff has accepted
rent for a period of occupancy beginning after the judgment was entered. [2001
c.596 §21 (105.151, 105.152, 105.153, 105.156, 105.157, 105.158, 105.159 and
105.161 enacted in lieu of 105.154); 2003 c.378 §31; 2011 c.366 §1]
105.165
Alternative method of removing, storing and disposing of tenant’s personal property;
requirements; landlord liability. (1) If ORS
chapter 90 applies to a dwelling unit, following restitution of the premises to
the plaintiff by the sheriff pursuant to ORS 105.161, the plaintiff shall
remove, store and dispose of any personal property left by the defendant on the
premises as provided in ORS 90.425 or 90.675.
(2) If ORS chapter 90 does not apply to a
premises, the plaintiff or landlord shall remove, store and dispose of any
personal property left by the defendant or tenant upon the premises following
recovery of possession of the premises by the plaintiff or landlord:
(a) Pursuant to any landlord’s lien
available under ORS 87.162;
(b) As provided by any rental agreement
between the plaintiff or landlord and the defendant or tenant; or
(c) At the plaintiff or landlord’s
discretion, by following the process described in ORS 90.425 (2), (3) and (5)
to (11) and (13) to (16) except that:
(A) The plaintiff or landlord may require
payment of any amount owed by the defendant or tenant to the plaintiff or
landlord prior to allowing the defendant or tenant to remove or recover the
personal property if the payment requirement is stated in the written notice;
and
(B) ORS 90.425 may be applied to address
only the rights and obligations of the plaintiff or landlord and defendant or
tenant in the personal property and not the rights of other parties.
(3) Any cost incurred by the plaintiff for
execution pursuant to ORS 105.151 or 105.158 to 105.161 or for removal, storage
or sale of the defendant’s property under this section and not recovered
pursuant to ORS 90.425 (13) or 90.675 (13) shall be added to the judgment.
(4) If the plaintiff fails to permit the
defendant to recover possession of the defendant’s personal property under
subsection (1) of this section, the defendant may recover from the plaintiff,
in addition to any other amount provided by law, twice the actual damages or
twice the monthly rent, whichever is greater. [1981 c.753 §9; 1989 c.506 §23;
1989 c.910 §5; 1993 c.369 §18; 1995 c.559 §51; 1997 c.577 §39; 2001 c.596 §48;
2003 c.378 §32; 2003 c.658 §10]
105.168
Minor as party in proceedings pertaining to residential dwellings.
Notwithstanding ORCP 27 or any other provision of law, a minor, as defined in
ORS 109.697 and who is a tenant as defined under ORS 90.100, may appear as a
party without appointment of a guardian or guardian ad litem in an action for
forcible entry or wrongful detainer, under ORS 105.105 to 105.168 regarding
possession of a residential dwelling unit to which ORS chapter 90 applies, or
in an action based upon a contract for a residential dwelling unit or for
utility services provided to that unit. [1993 c.369 §31]
EASEMENT
OWNER OBLIGATIONS
105.170
Definitions for ORS 105.170 to 105.185. For purposes
of ORS 105.170 to 105.185:
(1) “Easement” means a nonpossessory
interest in the land of another which entitles the holders of an interest in
the easement to a private right of way, embodying the right to pass across
another’s land.
(2) “Holders of an interest in an easement”
means those with a legal right to use the easement, including the owner of the
land across which the easement passes if the owner of the land has the legal
right to use the easement. [1989 c.660 §1; 1991 c.49 §1]
105.175
Easement to be kept in repair; sharing costs; agreements.
(1) The holders of an interest in any easement shall maintain the easement in
repair.
(2) The cost of maintaining the easement
in repair shall be shared by each holder of an interest in the easement,
pursuant to the terms of any agreement entered into by the parties for that
purpose or any recorded instrument creating the easement. Any such agreement,
or a memorandum thereof, shall be recorded in the real property records of the
county in which the easement is located. Failure to record the agreement shall
not affect the enforceability of the agreement among the parties to the
agreement and any other person with actual notice of the agreement.
(3) The cost of maintaining the easement
in repair in the absence of an agreement and in the absence of maintenance
provisions in a recorded instrument creating the easement shall be shared by
each holder of an interest in the easement in proportion to the use made of the
easement by each holder of an interest in the easement.
(4) Unless inconsistent with an agreement
between the holders of an interest in an easement or a recorded instrument
creating the easement, in determining proportionate use and settling conflicts
the following guidelines apply:
(a) The frequency of use and the size and
weight of vehicles used by the respective parties are relevant factors.
(b) Unless inappropriate, based on the
factors contained in paragraph (a) of this subsection or other relevant
factors, costs for normal and usual maintenance of the easement and costs of
repair of the easement damaged by natural disasters or other events for which
all holders of an interest in the easement are blameless may be shared on the
basis of percentages resulting from dividing the distance of total normal usage
of all holders of an interest in the easement into the normal usage distance of
each holder of an interest in the easement.
(c) Those holders of an interest in the
easement that are responsible for damage to the easement because of negligence
or abnormal use shall repair the damage at their sole expense. [1989 c.660 §§2,3,4;
1991 c.49 §2]
105.180
Action for failure to comply with duty of holder; recovery of costs; arbitration.
(1) If any holder of an interest in an easement fails to maintain the easement
contrary to an agreement or contrary to the maintenance provisions of a
recorded instrument creating the easement or, in the absence of an agreement or
recorded instrument imposing maintenance obligations, fails after demand in
writing to pay the holder’s proportion of the cost as indicated in ORS 105.175
(3) and (4), a civil action for money damages or specific performance or
contribution may be brought against that person in a court of competent
jurisdiction by one or more of the other holders of an interest in the
easement, either jointly or severally. In any such civil action, the court may
order such equitable relief as may be just in the circumstances. Nothing in ORS
105.170 to 105.185 shall impose a maintenance obligation on the holder of an
interest in an easement based on the maintenance provisions in an instrument
creating the easement if such holder is not a party to such instrument, whether
the instrument is recorded or not, after such holder ceases to use the
easement.
(2) The prevailing party shall recover all
court costs, arbitration fees and attorney fees.
(3) Any holder of an interest in the
easement may apply to the court of competent jurisdiction where the easement is
located and that has jurisdiction over the amount in controversy for the appointment
of an impartial arbitrator to apportion the cost, and the matter may be
arbitrated in accordance with ORS 36.600 to 36.740. The application may be made
before, during or after performance of the maintenance work. [1989 c.660 §5;
1991 c.49 §3; 2003 c.598 §34]
105.185
Application of ORS 105.170 to 105.185. The
provisions of ORS 105.170 to 105.185:
(1) Apply to all easements existing on or
created after January 1, 1992; and
(2) Do not apply to rights of way held or
used by providers of public services including, but not limited to, railroad
common carriers, pipeline companies, public utilities, electric cooperatives,
people’s utility districts, water utility districts, municipally owned
utilities and telecommunications utilities, when used for the sole purpose of
provision of service or maintaining or repairing facilities for the provision
or distribution of service. [1989 c.660 §6; 1991 c.49 §4]
MODIFICATION
OF LEASE TERMS
105.190
Covenant of good faith and fair dealing; rights and obligations of parties.
Whenever a covenant of good faith and fair dealing is implied in the lease of
real property, a party’s rights or duties under such covenant may be modified
only by express provision in the lease agreement. [1997 c.845 §1]
PARTITION
105.205
Who may maintain partition. When several persons hold real
property as tenants in common, in which one or more of them have an estate of
inheritance, or for life or years, or when several persons hold as tenants in
common a vested remainder or reversion in any real property, any one or more of
them may maintain a suit for the partition of the real property according to
the respective rights of the persons interested therein, and for a sale of all
or a part of the property if it appears that a partition cannot be had without
great prejudice to the owner.
105.210
When and how partition prevented. (1) If the
court finds that the property can neither be partitioned nor sold without great
prejudice to the owners, the court may receive evidence as to the value of the
respective interests, fix the value thereof, and make an order permitting an
owner to borrow money upon the property with which to pay off the interest, as
so fixed, of another owner. Subject to subsection (2) of this section, an owner
whose interest in the property is to be satisfied shall be fully discharged by
proof of payment filed with the court of the amount fixed by the court as the
value of that owner’s interest. A discharged owner shall have no further
interest in or claim upon the property.
(2) A court may not order the discharge of
an interest of a public body in real property without the consent of the
governing body of the public body. [Amended by 2001 c.606 §1]
105.215
Complaint. The interest of all known and unknown
persons in the property shall be specifically and particularly set forth in the
complaint for partition, as far as known to the plaintiff. If one or more of
the parties, or the share or quantity of interest of any of the parties, is
unknown to the plaintiff or is uncertain or contingent, or if the ownership of
the inheritance depends upon an executory devise, or the remainder is a
contingent remainder, so that the parties cannot be named, that fact shall be
set forth in the complaint.
105.220
Tenants and lien creditors as defendants; liens on undivided interests.
The plaintiff shall make a tenant in dower, by the curtesy, for life or for
years of any portion of the entire property and creditors having a lien upon
any portion of the property defendants in the suit. When the lien is upon an
undivided interest or estate of any of the parties and a partition is made, it
is thenceforth a lien only upon the share assigned to such party; but such
share shall be first charged with its just proportion of the cost of the
partition in preference to such lien.
105.225
Summons; to whom directed. The summons shall be directed by
name to all the tenants in common who are known, to all lien creditors who are
made parties to the suit and generally to all persons unknown having or
claiming an interest or estate in the property.
105.230
Service by publication. If a party having a share or
interest in or lien upon the property is unknown or cannot be found, and such
fact is made to appear by affidavit, the summons may be served on the unknown
or unlocated party by publication, directed by the court or judge, as in
ordinary cases. When service of the summons is made by publication it must be
accompanied by a brief description of the property which is the subject of the
suit. [Amended by 1979 c.284 §95]
105.235
Answer. The defendant shall set forth in the
answer the nature and extent of the interest of the defendant in the property.
If the defendant is a lien creditor the defendant shall set forth how the lien
was created, the amount of the debt secured thereby and remaining due, and
whether such debt is secured in any other way, and if so, the nature of the
other security.
105.240
Rights determinable; ascertainment of title where defendant defaults or sale is
necessary. The rights of the plaintiffs and
defendants may be put in issue, tried and determined in the suit. If a
defendant fails to answer, or if a sale of the property is necessary, the title
shall be ascertained by proof to the satisfaction of the court before the
judgment for partition or sale is given. [Amended by 2003 c.576 §361]
105.245
Sale or partition ordered by court. If it is
alleged in the complaint and established by evidence, or if it appears by the
evidence to the satisfaction of the court without an allegation in the complaint,
that the property or any part of it is so situated that partition cannot be
made without great prejudice to the owners, the court may order a sale of the
property, and for that purpose may appoint one or more referees. Otherwise,
upon the requisite proofs being made, it shall enter a judgment requiring a
partition according to the respective rights of the parties, as ascertained by
the court. The court shall appoint three referees to partition the property and
shall designate the portion to remain undivided for the owners whose interest
remain unknown or not ascertained. [Amended by 2003 c.576 §362]
105.250
Compensation when equal partition cannot be made.
When it appears that partition cannot be made without prejudice to the rights
and interests of some of the parties, the court may adjudge compensation to be
made by one party to another on account of the inequality of partition.
Compensation shall not be required to be paid to others by owners unknown, nor
by infants unless it appears that an infant has personal property sufficient
for that purpose, and that the interest of the infant will be promoted thereby.
105.255
How referees make partition; report. In making the
partition the referees shall divide the property and allot the several portions
thereof to the respective parties, quality and quantity relatively considered,
according to the respective rights of the parties as determined by the court.
They shall designate the several portions by proper landmarks, and may employ a
surveyor with the necessary assistants to aid them. The referees shall make a
report of their proceedings, specifying therein the manner of executing their
trust and describing the property divided and the shares allotted to each party
with a particular description of each share.
105.260
Power of court over report; final judgment. The
court may confirm or set aside the report in whole or in part and if necessary
appoint new referees. Upon the report being confirmed, a judgment shall be
given stating that the partition shall be effectual forever. Except as provided
in ORS 105.265, the judgment is binding and conclusive:
(1) On all parties named therein, and
their legal representatives, who have at the time any interest in any part of
the property divided as owners in fee or as tenants for life or for years.
(2) On all parties named therein, and
their legal representatives, entitled to the reversion, remainder or
inheritance of the property or any part thereof after the termination of a
particular estate therein, or who by any contingency may be entitled to a
beneficial interest in the property.
(3) On all parties named therein, or their
legal representatives, who have an interest in any undivided share of the
property as tenants for years or for life.
(4) On all persons interested in the
property who are unknown, to whom notice was given of the application for
partition by publication, as directed by ORS 105.230.
(5) On all persons claiming from parties
or persons listed in subsections (1) to (4) of this section. [Amended by 2003
c.576 §363]
105.265
Persons not affected by judgment. The judgment
provided for in ORS 105.260 shall not affect tenants for years or for life of
the whole of the property which is the subject of partition. Except as provided
in ORS 105.260, the judgment and partition shall not preclude any person from
claiming title to the property in question, or from controverting the title of
the parties between whom the partition was made. [Amended by 2003 c.576 §364]
105.270
Order of sale on referees’ report. If the
referees report to the court that the property to be partitioned, or any
separate portion thereof, is so situated that a partition thereof cannot be
made without great prejudice to the owners, and the court is satisfied that the
report is correct, it may, by an order, direct the referees to sell the
property or separate portion thereof so situated. [Amended by 2003 c.576 §365]
105.275
Conclusiveness of order confirming report. If the
report of the referee is confirmed the order of confirmation is binding and
conclusive upon all parties to the suit.
105.280
How sale made; notice of sale. All sales of
real property made by the referees shall be made by public auction to the
highest bidder in the manner required for the sale of real property on execution.
The notice shall state the terms of sale. If the property or any part of it is
to be sold subject to a prior estate, charge or lien, that fact shall be stated
in the notice.
105.285
Distribution of proceeds of sale. The proceeds
of the sale of encumbered property shall be distributed by the judgment of the
court as follows:
(1) To pay the property’s just proportion
of the general costs of the suit.
(2) To pay the costs of the reference.
(3) To satisfy the several liens in their
order of priority, by payment of the sums due and to become due, according to
the judgment.
(4) The residue among the owners of the
property sold, according to their respective shares. [Amended by 2003 c.576 §366]
105.290
Distribution of proceeds by referee or payment into court.
The proceeds of sale and the securities taken by the referees, or any part
thereof, shall be distributed by them to the persons entitled thereto whenever
the court so directs. If no such direction is given, all proceeds and
securities shall be paid into court or deposited as directed by the court.
105.295
Continuance of suit after proceeds paid into court.
When the proceeds of sales of any shares or parcel belonging to known persons
who are parties to the suit are paid into court, the suit may be continued as
between such parties for the determination by the court of their respective
claims thereto. Further testimony may be taken in court, or by a referee, at
the discretion of the court, and the court may, if necessary, require the
parties to present the facts or law in controversy by pleadings as in an
original suit.
105.300
When lienholder has other securities. Whenever any
party to the suit, who holds a lien upon any part of the property has other
securities for the payment of the amount of the lien, the court may, in its
discretion, order the securities to be exhausted before a distribution of the
proceeds of sale, or may order a just deduction to be made from the amount of
the lien on the property.
105.305
Credit allowed. The court shall, in the order of
sale, direct the terms of credit which may be allowed for the purchase money of
any portion of the premises which it may direct to be sold on credit; and for
that portion of which the purchase money is required by ORS 105.370 to be invested
for the benefit of unknown owners, infants or parties out of the state. The
referees may take separate mortgages and other securities for the whole or
convenient portions of the purchase money of such parts of the property as are
directed by the court to be sold on credit, in the name of the clerk of the
court and the clerk’s successor in office. When there is a known owner of full
age, the security for the share of the owner shall be executed in the name of
the owner.
105.310
Setting off estate for life or years in part not sold.
When only a part of the property is ordered to be sold, the whole of an estate
for life or years in an undivided share of the property may be set off in any
part of the property not ordered to be sold.
105.315
Disposition of life estate or leasehold. When the
estate of any tenant for life or years in any undivided part of the property in
question was admitted by the parties or ascertained by the court to be existing
at the time of the order of sale, and the person entitled to such estate was
made a party to the suit, the estate may be first set off out of any part of
the property and a sale made of such parcel subject to the tenants prior unsold
estate; but if in the judgment of the court a due regard to the interest of all
the parties requires that such estate should also be sold, the sale of the
estate may be ordered.
105.320
Compensation of tenants in case of sale. Any person
entitled to an estate for life or years in any undivided part of the property,
whose estate has been sold, shall be entitled to receive such sum in gross as
is, deemed, upon principles of law applicable to annuities, a reasonable
satisfaction for the estate. If the person so entitled consents to that sum,
the person shall accept it by executing an instrument that is duly acknowledged
or proved in the same manner as deeds for the purpose of record, and filed with
the clerk.
105.325
When court determines value of tenancy. If a tenant
does not consent pursuant to ORS 105.320, before the report of sale, the court
shall ascertain and determine what proportion of the proceeds of the sale,
after deducting expenses, will be a just and reasonable sum to be invested for
the tenant’s benefit, and shall order that sum to be deposited in court for
that purpose.
105.330
Rules for determining value of certain estates.
The proportion of the proceeds of the sale to be invested, as provided in ORS
105.325, shall be ascertained and determined as follows:
(1) If an estate in dower or curtesy is
included in the order of sale its proportion shall be one-half of the proceeds
of the sale of the property, or of the sale of the undivided share in the
property upon which the claim or dower existed.
(2) If any other estate for life or years
is included in the order of sale its proportion shall be the whole proceeds of
the sale of the property, or of the sale of an undivided share of the property
in which the estate existed.
105.335
Protection of unknown tenants. If any person
entitled to an estate for life or years is unknown, the court shall provide for
the protection of the rights of the person in the same manner, as far as
possible, as if the person were known and had appeared.
105.340
Provision for future rights or interests. In all
cases of sales in partition when it appears that any person has a vested or
contingent future right or estate in any of the property sold, the court shall
ascertain and settle the proportional value of the contingent or vested right
or estate according to the principles of law applicable to annuities and
survivorship, and shall direct such proportion of the proceeds of sale to be
invested, secured or paid over in such manner as to protect the rights and
interests of the parties. [Amended by 1969 c.591 §282]
105.345
Notice of terms of sale; separate sale of distinct parcels.
In all cases of sales of property, the terms shall be known at the time. If the
premises consist of distinct farms or lots they shall be sold separately, or
otherwise if the court so directs.
105.350
Purchase by referee, conservator or guardian forbidden.
Neither of the referees, nor any person for the benefit of either of them,
shall be interested in any purchase at a partition sale; nor shall the guardian
or conservator of the estate of an infant party be interested in the purchase
of any real property that is the subject of the suit, except for the benefit of
the infant. All sales contrary to the provisions of this section are void. [Amended
by 1973 c.823 §99]
105.355
Report of sale. After completing the sale the
referees shall report it to the court with the description of the different
parcels of land sold to each purchaser, the name of the purchaser, the price
paid or secured, the terms and conditions of the sale and the securities, if
any, taken. The report shall be filed with the clerk.
105.360
Exception to report; confirmation of sale; order of confirmation.
The report of sale may be excepted to by any party entitled to a share of the
proceeds in like manner and with like effect as in ordinary cases. If the sale
is confirmed the order of confirmation shall direct the referees to execute
conveyances and take securities pursuant to the sale, which acts they are
hereby authorized to do. The order shall discharge the property of the estate
or interest of every person mentioned in ORS 105.260 and of tenants for life or
years of the property sold. The order shall be binding and conclusive upon all
such persons as if it were a judgment for the partition of such property and
except as provided in ORS 105.350, upon all persons whomsoever as to the
regularity of the proceedings concerning such sale. [Amended by 2003 c.576 §367]
105.365
Purchase by encumbrancer or party entitled to share.
When a party entitled to a share of the property, or an encumbrancer entitled
to have the lien of the encumbrancer paid out of the sale, becomes a purchaser,
the referees may take a receipt for so much of the proceeds of the sale as
belongs to the party or the encumbrancer.
105.370
Investment of proceeds for certain parties. When
there are proceeds of sale belonging to an unknown owner, or to a person
without the state who has no legal representative within it, or when there are
proceeds arising from the sale of an estate subject to the prior estate of a
tenant for life or years, which are paid into court or otherwise deposited by
order of the court, such proceeds shall be invested in securities on interest
for the benefit of the persons entitled thereto.
105.375
In whose name securities taken or investments made.
Except as provided in ORS 105.380, security for the proceeds of sale shall be
taken or investments of the proceeds shall be made in the name of the clerk of
the court and the clerk’s successors in office, who shall hold the same for the
use and benefit of the parties interested, subject to the order of the court.
105.380
When securities are payable to parties. When security
is taken by the referees on a sale, and the parties interested in the security,
by an instrument in writing under their hands delivered to the referees, agree
upon the shares and proportions to which they are entitled, or when shares and
proportions have been previously adjudged by the court, the securities shall be
taken in the names of and payable to the parties entitled thereto, and shall be
delivered to such parties upon their receipt therefor. Such agreement and
receipt shall be returned and filed with the clerk.
105.385
Clerk’s treatment of securities and investments.
The clerk in whose name a security is taken or by whom an investment is made,
and the clerk’s successors in office, shall receive the interest and principal
as it becomes due and apply and invest it as the court may direct. The clerk
shall file in the office of the clerk all securities taken, and keep an account
in a book provided and kept for that purpose in the office, free for inspection
by all persons, of investments and moneys received and disposed of by the
clerk.
105.390
When proceeds paid to conservator or guardian of infant.
When the share of an infant is sold, the proceeds of the sale may be paid by
the referees making the sale to the guardian of the infant, the conservator of
the estate of the infant or the special guardian appointed for the infant in
the suit, upon the guardian or conservator giving the security required by law or
ordered by the court. [Amended by 1973 c.823 §100]
105.395
Payment of proceeds to conservator of incapacitated person.
When the interest in real property of an incapacitated person has been sold,
the share of the incapacitated person of the proceeds shall be given, on the
behalf of the incapacitated person, to the conservator of the estate of the
incapacitated person if the conservator executes, with sufficient sureties, an
undertaking approved by the judge of the court, that the conservator will faithfully
discharge the trust reposed in the conservator and will render a true and just
account to the person entitled to the proceeds or to the legal representative
of the person. [Amended by 1973 c.823 §101]
105.400
When conservator or guardian may consent to partition.
When an infant or an incapacitated person is interested in real estate held in
common or in any other manner so as to authorize the infant or incapacitated
person being made a party to an action for the partition thereof, the guardian
of the infant or incapacitated person or the conservator of the estate of the
infant or incapacitated person may consent to a partition without suit and
agree upon the share to be set off to the infant or incapacitated person. When
the court so orders, the guardian or conservator may execute a release on
behalf of the infant or other incapacitated person to the owners of the other
shares of the parts to which they are respectively entitled. [Amended by 1973
c.823 §102; 1987 c.158 §17]
105.405
Costs and expenses of partition. (1) The
expenses of the referees, including those of a surveyor and assistants of the
surveyor when employed, shall be ascertained and allowed by the court, and the
amount thereof, together with the fees allowed by law to the referees, shall be
paid by the plaintiff, and may be allowed as part of the costs of partition.
(2) The reasonable costs of partition,
including reasonable attorney fees and disbursements, that are for services
performed for the common benefit of all parties, shall be paid by the parties
that will share in the lands divided in proportion to their respective
interests therein, and shall be included and specified in the judgment. They
shall be a lien on the several shares, and the judgment may be enforced by
execution against the parties separately. When, however, a controversy arises
between some of the parties only, the court may require the expense of such
controversy to be paid by any of, or all, the parties thereto. [Amended by 1971
c.502 §1; 2003 c.576 §368]
HOUSING
RECEIVERSHIP
105.420
Findings; policy. (1) The Legislative Assembly
recognizes that there exists residential property in this state that is
insanitary and unsafe and that many citizens, especially those with lower
incomes, are forced to live in and occupy these properties.
(2) The Legislative Assembly further
recognizes that there are residential properties in this state that have not
been maintained in compliance with basic sanitary and habitability standards
and which have become abandoned. These conditions contribute to the spread of
disease and criminal activity, create urban blight and community deterioration,
adversely affect the state’s economic and social viability and otherwise
detrimentally impact the public’s health, safety and welfare.
(3) In order to correct these conditions,
it is necessary to revitalize these residential properties and thus add to the
overall housing stock of this state. The Legislative Assembly deems it
necessary to authorize county and municipal governments to adopt and implement
receivership programs to allow for the upgrading of substandard and abandoned
residential properties. [1989 c.649 §2]
105.425
Definitions for ORS 105.420 to 105.445 and 105.455.
As used in ORS 105.420 to 105.445 and 105.455:
(1) “Abatement” means the removal or
correction of any condition at a property including demolition that violates
the provisions of any duly enacted building or housing code, as well as the
making of such other improvements or corrections as are needed to effect the
rehabilitation of the property or structure, but not including the closing or
physical securing of the structure.
(2) “Building code” or “housing code”
means any law, ordinance or governmental regulation concerning habitability or
the construction, maintenance, operation, occupancy, use or appearance of any
property.
(3) “Governing body” means the city
council, board of commissioners, county court or other managing board of a
municipality or county.
(4) “Interested party” means any person or
entity that possesses any legal or equitable interest of record in the
property, including but not limited to the holder of any lien or encumbrance of
record on the property.
(5) “Property” means real property and all
improvements thereon including edifices, structures, buildings, unit or part
thereof used or intended to be used for residential purposes including
single-family, duplex, multifamily structures and mixed-use structures which
have one or more residential units. [1989 c.649 §3]
105.430
Receivership for buildings that constitute threat to public health, safety or
welfare; procedure. (1) If residential property is
found to be in violation of building or housing codes which the city or county,
in the exercise of reasonable discretion believes constitutes a threat to the
public health, safety or welfare, the city or county in addition to any other
remedies available to it may apply to a court of competent jurisdiction for the
appointment of a receiver to perform an abatement.
(2) At least 60 days prior to the filing
of an application for appointment of a receiver pursuant to ORS 105.420 to
105.455, the city or county shall give written notice by regular mail to all
interested parties of its intent to file the application and information
relative to:
(a) The identity of the property;
(b) The violations of the building or
housing codes giving rise to the application for the receiver;
(c) The name, address and telephone number
of the person or department where additional information can be obtained
concerning violations and their remedy; and
(d) The city or county which may seek the
appointment of a receiver pursuant to ORS 105.420 to 105.455 unless action is
taken within 60 days by an interested party.
(3) A city or county may not apply for the
appointment of a receiver pursuant to ORS 105.420 to 105.455 if an interested
party has commenced and is then prosecuting in a timely fashion an action or
other judicial or nonjudicial proceeding to foreclose a security interest on
the property, or to obtain specific performance of or forfeit the purchaser’s
interest in under a land sale contract.
(4) Notice of the application for the
appointment of a receiver pursuant to ORS 105.420 to 105.455 shall be served on
all interested parties.
(5) If, following the application for appointment
of a receiver, one or more of the interested parties elects to correct the
conditions at the property giving rise to the city’s or county’s application
for the appointment of a receiver, the party or parties shall be required to
post security in an amount and character as the court deems appropriate to
insure timely performance of all work necessary to make corrections, as well as
such other conditions as the court deems appropriate to effect the timely
completion of the corrections by the interested party or parties.
(6) In the event that no interested party
elects to act pursuant to subsection (5) of this section or fails to timely
perform work undertaken pursuant to subsection (5) of this section, the court
shall make a determination that the property is an unsafe or insanitary
condition and appoint a receiver to complete the abatement.
(7) A receiver may be any one of the
following:
(a) A housing authority organized under
the terms of ORS 456.055 to 456.235;
(b) An urban renewal agency organized
under the terms of ORS 457.035 to 457.320;
(c) A private not-for-profit corporation,
the primary purpose of which is the improvement of housing conditions within
the city or county; or
(d) A city or county agency, bureau or
similar subdivision designated by the city or county as being responsible for
the rehabilitation of property.
(8) A receiver appointed by the court
pursuant to ORS 105.420 to 105.455 shall not be required to give security or
bond of any sort prior to appointment. [1989 c.649 §4; 1995 c.79 §34]
105.435
Authority of receiver; financing agreements; fee; abatement work exempt from
public contracting law. (1) A receiver appointed by the
court, pursuant to ORS 105.420 to 105.455, shall have the authority to do any
or all of the following unless specifically limited by the court:
(a) Take possession and control of the
property including the right to enter, modify and terminate tenancies pursuant
to ORS 105.105 to 105.161 and to charge and collect rents derived therefrom,
applying said sum to the costs incurred due to the abatement and receivership;
(b) Negotiate contracts and pay all
expenses associated with the operation and conservation of the property
including, but not limited to, all utility, fuel, custodial, repair or
insurance costs;
(c) Pay all accrued property taxes,
penalties, assessments and other charges imposed on the property by a unit of
government as well as any accruing charge of like nature accruing during the
pendency of the receivership;
(d) Dispose of any or all abandoned
personal property found at the structure; and
(e) Enter into contracts and pay for the
performance of any work necessary to complete the abatement.
(2) In addition to the powers set forth in
subsection (1) of this section, the receiver may, under such terms and
condition as a court shall allow, enter into financing agreements with public
or private lenders and encumber the property therewith so as to have moneys
available to correct the conditions at the property giving rise to the
abatement.
(3) A receiver may charge an
administrative fee at an hourly rate approved by the court or at a rate of 15
percent of the total cost of the abatement, whichever the court deems more
appropriate.
(4) All abatement work done under ORS
105.420 to 105.455 is exempt from the public contracting statutes set forth in
ORS 279C.005, 279C.100 to 279C.125 and 279C.300 to 279C.470 and ORS chapters
279A and 279B, except ORS 279A.125, 279A.250 to 279A.290 and 279B.235. [1989
c.649 §§5,6; 2003 c.794 §196]
105.440
Review of abatement expenditures by court; lien for unpaid expenses.
(1) All moneys expended and all costs and obligations incurred by the receiver
in performing the abatement shall be reviewed by the court for reasonableness
and their necessity in performing the abatement. To the extent that the court
finds the moneys, costs or obligations, or any combination thereof, to be
reasonable and necessary, it shall issue an order reciting this fact as well as
the amount found to be reasonable and necessary.
(2) If the costs and obligations incurred
due to the abatement have not been paid, the order of the court shall be filed
with the county recorder within 60 days of its filing with the court and shall
thereafter constitute a lien on the property. [1989 c.649 §7]
105.445
Effect on purchase money security interest of lien for unpaid abatement
expenses. (1) As used in this section, “purchase
money security interest” means:
(a) The interest of a vendor under a land
sale contract pertaining to the property if the contract was recorded prior to
the issuance of the notice under ORS 105.430 (2);
(b) The interest of a mortgagee under a
purchase money mortgage if the mortgage was recorded prior to the issuance of
the notice under ORS 105.430 (2); or
(c) The interest of a beneficiary under a
purchase money trust deed if the trust deed was recorded prior to the issuance
of the notice under ORS 105.430 (2).
(2) Notwithstanding any other provision of
law or any purchase money security interest, the issuance of the notice under ORS
105.430 (2) shall constitute a default under the purchase money security
interest, and if the violations of the building or housing codes listed in the
notice are not corrected within 30 days after the mailing of the notice, the
vendor, mortgagee or beneficiary under the purchase money security interest may
commence proceedings to exercise the remedies set forth in the purchase money
security interest.
(3) A lien created by ORS 105.440 (2)
shall be prior and superior to any purchase money security interest in the
property if:
(a) The city or county gave the holder of
the purchase money security interest and any vendee, mortgagor or grantor under
such purchase money security interest the notice required under ORS 105.430
(2); and
(b) The holder of the purchase money
security interest has not, prior to the appointment of a receiver under ORS
105.430 (6), initiated proceedings or taken other action to foreclose the
purchase money security interest or to otherwise gain possession of the
property.
(4) A lien created under ORS 105.440 (2)
shall, except for property tax liens, assessment liens, liens created by ORS
87.352 to 87.362 and purchase money security interests not covered by
subsection (3) of this section, be prior and superior to all other liens, mortgages
and encumbrances against the property upon which it is imposed without regard
to whether the other liens, mortgages or encumbrances attached to the property
before or after the lien created by ORS 105.440 (2) attached. [1989 c.649 §8]
105.450
Termination of receivership. The
receivership authorized pursuant to the terms of ORS 105.420 to 105.455 shall
terminate only by an order of the court after a showing by an interested party
or the receiver that:
(1) The abatement has been completed;
(2) The costs and obligations incurred due
to the abatement have been paid by an interested party or a lien has been filed
pursuant to ORS 105.440; and
(3) The interested party will manage the
property in conformance with applicable housing codes. [1989 c.649 §9]
105.455
Short title. ORS 105.420 to 105.430 and 105.455 may
be cited as the Oregon Housing Receivership Act. [1989 c.649 §1]
SELLER’S
PROPERTY DISCLOSURE STATEMENT
105.462
Definitions for ORS 105.462 to 105.490. For purposes
of ORS 105.462 to 105.490:
(1) “Financial institution” has the
meaning given that term in ORS 706.008. “Financial institution” includes a:
(a) Trust company, as that term is defined
in ORS 706.008;
(b) Mortgage banker, as that term is
defined in ORS 86A.100;
(c) Mortgage broker, as that term is
defined in ORS 86A.100; and
(d) Consumer finance company that is
licensed under ORS chapter 725.
(2) “Real estate licensee” has the meaning
given that term in ORS 696.010. [2003 c.328 §4; 2005 c.287 §1]
105.463
Preemptive effect of ORS 105.464. ORS 105.464
preempts any law, rule, regulation, code or ordinance of the political
subdivisions of this state including, but not limited to, the Lane Regional Air
Protection Agency regarding the disclosure of solid fuel burning devices, as
defined in ORS 468A.485, in connection with a written offer to purchase real
property in this state for which a seller’s property disclosure statement is
required under ORS 105.465 and 105.470. [2009 c.387 §17]
105.464
Form of seller’s property disclosure statement.
A seller’s property disclosure statement must be in substantially the following
form:
______________________________________________________________________________
If
required under ORS 105.465, a seller shall deliver in substantially the following
form the seller’s property disclosure statement to each buyer who makes a
written offer to purchase real property in this state:
______________________________________________________________________________
INSTRUCTIONS
TO THE SELLER
Please
complete the following form. Do not leave any spaces blank. Please refer to the
line number(s) of the question(s) when you provide your explanation(s). If you
are not claiming an exclusion or refusing to provide the form under ORS 105.475
(4), you should date and sign each page of this disclosure statement and each
attachment.
Each
seller of residential property described in ORS 105.465 must deliver this form
to each buyer who makes a written offer to purchase. Under ORS 105.475 (4),
refusal to provide this form gives the buyer the right to revoke their offer at
any time prior to closing the transaction. Use only the section(s) of the form
that apply to the transaction for which the form is used. If you are claiming
an exclusion under ORS 105.470, fill out only Section 1.
An
exclusion may be claimed only if the seller qualifies for the exclusion under
the law. If not excluded, the seller must disclose the condition of the
property or the buyer may revoke their offer to purchase anytime prior to
closing the transaction. Questions regarding the legal consequences of the
seller’s choice should be directed to a qualified attorney.
______________________________________________________________________________
(DO
NOT FILL OUT THIS SECTION UNLESS YOU ARE CLAIMING AN EXCLUSION UNDER ORS
105.470)
Section
1. EXCLUSION FROM ORS 105.462 TO 105.490:
You
may claim an exclusion under ORS 105.470 only if you qualify under the statute.
If you are not claiming an exclusion, you must fill out Section 2 of this form
completely.
Initial
only the exclusion you wish to claim.
_____This
is the first sale of a dwelling never occupied. The dwelling is constructed or
installed under building or installation permit(s) #_____, issued by________.
_____This
sale is by a financial institution that acquired the property as custodian,
agent or trustee, or by foreclosure or deed in lieu of foreclosure.
_____The
seller is a court appointed receiver, personal representative, trustee,
conservator or guardian.
_____This
sale or transfer is by a governmental agency.
______________________
Signature(s) of Seller claiming
exclusion
Date ________
______________________
Buyer(s) to acknowledge Seller’s
claim
Date ________
______________________________________________________________________________
(IF
YOU DID NOT CLAIM AN EXCLUSION IN SECTION 1, YOU MUST FILL OUT THIS SECTION.)
Section
2. SELLER’S PROPERTY DISCLOSURE STATEMENT
(NOT A WARRANTY)
(ORS 105.464)
NOTICE
TO THE BUYER: THE FOLLOWING REPRESENTATIONS ARE MADE BY THE SELLER(S)
CONCERNING THE CONDITION OF THE PROPERTY LOCATED AT _______________ (“THE
PROPERTY”).
DISCLOSURES
CONTAINED IN THIS FORM ARE PROVIDED BY THE SELLER ON THE BASIS OF SELLER’S
ACTUAL KNOWLEDGE OF THE PROPERTY AT THE TIME OF DISCLOSURE. BUYER HAS FIVE DAYS
FROM THE SELLER’S DELIVERY OF THIS SELLER’S DISCLOSURE STATEMENT TO REVOKE
BUYER’S OFFER BY DELIVERING BUYER’S SEPARATE SIGNED WRITTEN STATEMENT OF
REVOCATION TO THE SELLER DISAPPROVING THE SELLER’S DISCLOSURE STATEMENT, UNLESS
BUYER WAIVES THIS RIGHT AT OR PRIOR TO ENTERING INTO A SALE AGREEMENT.
FOR
A MORE COMPREHENSIVE EXAMINATION OF THE SPECIFIC CONDITION OF THIS PROPERTY,
BUYER IS ADVISED TO OBTAIN AND PAY FOR THE SERVICES OF A QUALIFIED SPECIALIST
TO INSPECT THE PROPERTY ON BUYER’S BEHALF INCLUDING, FOR EXAMPLE, ONE OR MORE
OF THE FOLLOWING: ARCHITECTS, ENGINEERS, PLUMBERS, ELECTRICIANS, ROOFERS,
ENVIRONMENTAL INSPECTORS, BUILDING INSPECTORS, CERTIFIED HOME INSPECTORS, OR
PEST AND DRY ROT INSPECTORS.
Seller
_____ is/ _____ is not occupying the property.
I.
SELLER’S REPRESENTATIONS:
The
following are representations made by the seller and are not the
representations of any financial institution that may have made or may make a
loan pertaining to the property, or that may have or take a security interest
in the property, or any real estate licensee engaged by the seller or the
buyer.
*If
you mark yes on items with *, attach a copy or explain on an attached sheet.
1. TITLE
A. Do
you have legal authority to sell the property? [
]Yes [ ]No [ ]Unknown
*B. Is
title to the property subject to any of the
following: [
]Yes [ ]No [ ]Unknown
(1) First
right of refusal
(2) Option
(3) Lease
or rental agreement
(4) Other
listing
(5) Life
estate?
*C. Is
the property being transferred an
unlawfully established unit of land? [ ]Yes [ ]No [
]Unknown
*D. Are
there any encroachments, boundary
agreements, boundary disputes or recent
boundary changes? [
]Yes [ ]No [ ]Unknown
*E. Are
there any rights of way, easements,
licenses, access limitations or claims
that
may affect your interest in the
property? [ ]Yes [ ]No [
]Unknown
*F. Are
there any agreements for joint
maintenance of an easement or right of
way? [ ]Yes [ ]No [
]Unknown
*G. Are
there any governmental studies, designations,
zoning overlays, surveys or notices
that would
affect the property? [
]Yes [ ]No [ ]Unknown
*H. Are
there any pending or existing governmental
assessments against the property? [ ]Yes [ ]No [
]Unknown
*I. Are
there any zoning violations or
nonconforming uses? [
]Yes [ ]No [ ]Unknown
*J. Is
there a boundary survey for the
property? [
]Yes [ ]No [ ]Unknown
*K. Are
there any covenants, conditions,
restrictions or private assessments
that
affect the property? [
]Yes [ ]No [ ]Unknown
*L. Is
the property subject to any special tax
assessment or tax treatment that may
result
in levy of additional taxes if the
property
is sold? [
]Yes [ ]No [ ]Unknown
2. WATER
A. Household
water
(1) The
source of the water is (check ALL that apply):
[ ]Public [ ]Community [ ]Private
[ ]Other ________
(2) Water
source information:
*a. Does
the water source require a water permit? [
]Yes [ ]No [ ]Unknown
If yes, do you have a permit? [ ]Yes [ ]No
b. Is
the water source located on the property? [
]Yes [ ]No [ ]Unknown
*If not, are there any written
agreements for
a shared water source? [
]Yes [ ]No [ ]Unknown [ ]NA
*c. Is
there an easement (recorded or unrecorded)
for your access to or maintenance of
the water
source? [
]Yes [ ]No [ ]Unknown
d. If
the source of water is from a well or spring,
have you had any of the following in
the past
12 months? [ ]Flow test [ ]Bacteria
test
[ ]Chemical contents test [
]Yes [ ]No [ ]Unknown [ ]NA
*e. Are
there any water source plumbing problems
or needed repairs? [
]Yes [ ]No [ ]Unknown
(3) Are
there any water treatment systems for
the property? [
]Yes [ ]No [ ]Unknown
[ ]Leased [ ]Owned
B. Irrigation
(1) Are
there any [ ] water rights or [ ] other
irrigation rights for the property? [ ]Yes [ ]No [
]Unknown
*(2) If
any exist, has the irrigation water been
used during the last five-year period? [ ]Yes [ ]No [
]Unknown [ ]NA
*(3) Is
there a water rights certificate or other
written evidence available? [
]Yes [ ]No [ ]Unknown [ ]NA
C. Outdoor
sprinkler system
(1) Is
there an outdoor sprinkler system for the
property? [
]Yes [ ]No [ ]Unknown
(2) Has
a back flow valve been installed? [
]Yes [ ]No [ ]Unknown [ ]NA
(3) Is
the outdoor sprinkler system operable? [
]Yes [ ]No [ ]Unknown [ ]NA
3. SEWAGE
SYSTEM
A. Is
the property connected to a public or
community sewage system? [
]Yes [ ]No [ ]Unknown
B. Are
there any new public or community sewage
systems proposed for the property? [ ]Yes [ ]No [
]Unknown
C. Is
the property connected to an on-site septic
system? [
]Yes [ ]No [ ]Unknown
If yes, was it installed by permit? [ ]Yes [ ]No [
]Unknown [ ]NA
*Has the system been repaired or
altered? [ ]Yes [ ]No [
]Unknown
Has the condition of the system been
evaluated and a report issued? [ ]Yes [ ]No [
]Unknown
Has it ever been pumped? [
]Yes [ ]No [ ]Unknown [ ]NA
If yes, when? _______________
*D. Are
there any sewage system problems or
needed repairs? [
]Yes [ ]No [ ]Unknown
E. Does
your sewage system require on-site
pumping to another level? [
]Yes [ ]No [ ]Unknown
4. DWELLING
INSULATION
A. Is
there insulation in the:
(1) Ceiling? [
]Yes [ ]No [ ]Unknown
(2) Exterior
walls? [
]Yes [ ]No [ ]Unknown
(3) Floors? [
]Yes [ ]No [ ]Unknown
B. Are
there any defective insulated doors or
windows? [
]Yes [ ]No [ ]Unknown
5. DWELLING
STRUCTURE
*A. Has
the roof leaked? [
]Yes [ ]No [ ]Unknown
If yes, has it been repaired? [
]Yes [ ]No [ ]Unknown [ ]NA
B. Are
there any additions, conversions or
remodeling? [
]Yes [ ]No [ ]Unknown
If yes, was a building permit required? [ ]Yes [ ]No [
]Unknown [ ]NA
If yes, was a building permit obtained? [ ]Yes [ ]No [
]Unknown [ ]NA
If yes, was final inspection obtained? [ ]Yes [ ]No [
]Unknown [ ]NA
C. Are
there smoke alarms or detectors? [
]Yes [ ]No [ ]Unknown
D. Are
there carbon monoxide alarms? [
]Yes [ ]No [ ]Unknown
E. Is
there a woodstove or fireplace
insert included in the sale? [
]Yes [ ]No [ ]Unknown
*If yes, what is the make? ________
*If yes, was it installed with a
permit? [ ]Yes [ ]No [
]Unknown
*If yes, is a certification label issued
by the
United States Environmental Protection
Agency (EPA) or the Department of
Environmental Quality (DEQ) affixed to
it? [ ]Yes [ ]No [
]Unknown
*F. Has
pest and dry rot, structural or
“whole house” inspection been done
within the last three years? [
]Yes [ ]No [ ]Unknown
*G. Are
there any moisture problems, areas of water
penetration, mildew odors or other
moisture
conditions (especially in the
basement)? [ ]Yes [ ]No [
]Unknown
*If yes, explain on attached sheet the
frequency
and extent of problem and any insurance
claims,
repairs or remediation done.
H. Is
there a sump pump on the property? [
]Yes [ ]No [ ]Unknown
I. Are
there any materials used in the
construction of the structure that are
or
have been the subject of a recall,
class
action suit, settlement or litigation? [ ]Yes [ ]No [
]Unknown
If yes, what are the materials? ________
(1) Are
there problems with the materials? [
]Yes [ ]No [ ]Unknown [ ]NA
(2) Are
the materials covered by a warranty? [
]Yes [ ]No [ ]Unknown [ ]NA
(3) Have
the materials been inspected? [
]Yes [ ]No [ ]Unknown [ ]NA
(4) Have
there ever been claims filed for these
materials by you or by previous owners? [ ]Yes [ ]No [
]Unknown [ ]NA
If yes, when? ________
(5) Was
money received? [
]Yes [ ]No [ ]Unknown [ ]NA
(6) Were
any of the materials repaired or
replaced? [
]Yes [ ]No [ ]Unknown [ ]NA
6. DWELLING
SYSTEMS AND FIXTURES
If the following systems or fixtures
are included
in the purchase price, are they in good
working
order on the date this form is signed?
A. Electrical
system, including wiring, switches,
outlets and service [
]Yes [ ]No [ ]Unknown
B. Plumbing
system, including pipes, faucets,
fixtures and toilets [
]Yes [ ]No [ ]Unknown
C. Water
heater tank [
]Yes [ ]No [ ]Unknown
D. Garbage
disposal [
]Yes [ ]No [ ]Unknown [ ]NA
E. Built-in
range and oven [
]Yes [ ]No [ ]Unknown [ ]NA
F. Built-in
dishwasher [
]Yes [ ]No [ ]Unknown [ ]NA
G. Sump
pump [
]Yes [ ]No [ ]Unknown [ ]NA
H. Heating
and cooling systems [
]Yes [ ]No [ ]Unknown [ ]NA
I. Security
system [ ]Owned [ ]Leased [
]Yes [ ]No [ ]Unknown [ ]NA
J. Are
there any materials or products used in
the systems and fixtures that are or
have
been the subject of a recall, class
action
settlement or other litigations? [ ]Yes [ ]No [
]Unknown
If yes, what product? _______________
(1) Are
there problems with the product? [
]Yes [ ]No [ ]Unknown
(2) Is
the product covered by a warranty? [
]Yes [ ]No [ ]Unknown
(3) Has
the product been inspected? [
]Yes [ ]No [ ]Unknown
(4) Have
claims been filed for this product
by you or by previous owners? [ ]Yes [ ]No [
]Unknown
If yes, when? _______________
(5) Was
money received? [
]Yes [ ]No [ ]Unknown
(6) Were
any of the materials or products repaired
or replaced? [
]Yes [ ]No [ ]Unknown
7. COMMON
INTEREST
A. Is
there a Home Owners’ Association
or other governing entity? [
]Yes [ ]No [ ]Unknown
Name of Association or Other Governing
Entity _______________
Contact Person __________________
Address ______________________
Phone Number __________________
B. Regular
periodic assessments: $_____
per [ ]Month [ ]Year [ ]Other _____
*C. Are
there any pending or proposed special
assessments? [
]Yes [ ]No [ ]Unknown
D. Are
there shared ‘common areas:Q1ENB. or joint
maintenance agreements for facilities
like
walls, fences, pools, tennis courts,
walkways
or other areas co-owned in undivided
interest
with others? [
]Yes [ ]No [ ]Unknown
E. Is
the Home Owners’ Association or other
governing entity a party to pending
litigation
or subject to an unsatisfied judgment? [ ]Yes [ ]No [
]Unknown [ ]NA
F. Is
the property in violation of recorded
covenants, conditions and restrictions
or in
violation of other bylaws or governing
rules,
whether recorded or not? [
]Yes [ ]No [ ]Unknown [ ]NA
8. GENERAL
A. Are
there problems with settling, soil,
standing water or drainage on the
property
or in the immediate area? [
]Yes [ ]No [ ]Unknown
B. Does
the property contain fill? [
]Yes [ ]No [ ]Unknown
C. Is
there any material damage to the property or
any of the structure(s) from fire,
wind, floods,
beach movements, earthquake, expansive
soils
or landslides? [
]Yes [ ]No [ ]Unknown
D. Is
the property in a designated floodplain? [
]Yes [ ]No [ ]Unknown
E. Is
the property in a designated slide or other
geologic hazard zone? [
]Yes [ ]No [ ]Unknown
*F. Has
any portion of the property been tested
or treated for asbestos, formaldehyde,
radon
gas, lead-based paint, mold, fuel or
chemical
storage tanks or contaminated soil or
water? [ ]Yes [ ]No [
]Unknown
G. Are
there any tanks or underground storage
tanks (e.g., septic, chemical, fuel,
etc.)
on the property? [ ]Yes [ ]No [
]Unknown
H. Has
the property ever been used as an illegal
drug manufacturing or distribution
site? [ ]Yes [ ]No [
]Unknown
*If yes, was a Certificate of Fitness
issued? [ ]Yes [ ]No [
]Unknown
*I. Has
the property been classified as
forestland-urban interface? [
]Yes [ ]No [ ]Unknown
9. FULL
DISCLOSURE BY SELLERS
*A. Are
there any other material defects affecting
this property or its value that a
prospective
buyer should know about? [
]Yes [ ]No
*If yes, describe the defect on
attached sheet and
explain the frequency and extent of the
problem
and any insurance claims, repairs or
remediation.
B. Verification:
The foregoing answers and attached
explanations (if any) are complete and correct to
the best of
my/our knowledge and I/we have received a copy of this disclosure statement.
I/we authorize
my/our agents to deliver a copy of this disclosure statement to all
prospective
buyers of the property or their agents.
Seller(s) signature:
SELLER ______________________ DATE _______________
SELLER ______________________ DATE _______________
______________________________________________________________________________
II.
BUYER’S ACKNOWLEDGMENT
A.
As buyer(s), I/we acknowledge the duty to pay diligent attention to any
material defects that are known to me/us or can be known by me/us by utilizing
diligent attention and observation.
B.
Each buyer acknowledges and understands that the disclosures set forth in this
statement and in any amendments to this statement are made only by the seller
and are not the representations of any financial institution that may have made
or may make a loan pertaining to the property, or that may have or take a
security interest in the property, or of any real estate licensee engaged by
the seller or buyer. A financial institution or real estate licensee is not
bound by and has no liability with respect to any representation, misrepresentation,
omission, error or inaccuracy contained in another party’s disclosure statement
required by this section or any amendment to the disclosure statement.
C.
Buyer (which term includes all persons signing the ‘buyer’s acknowledgment’
portion of this disclosure statement below) hereby acknowledges receipt of a
copy of this disclosure statement (including attachments, if any) bearing
seller’s signature(s).
DISCLOSURES,
IF ANY, CONTAINED IN THIS FORM ARE PROVIDED BY THE SELLER ON THE BASIS OF SELLER’S
ACTUAL KNOWLEDGE OF THE PROPERTY AT THE TIME OF DISCLOSURE. IF THE SELLER HAS
FILLED OUT SECTION 2 OF THIS FORM, YOU, THE BUYER, HAVE FIVE DAYS FROM THE
SELLER’S DELIVERY OF THIS DISCLOSURE STATEMENT TO REVOKE YOUR OFFER BY
DELIVERING YOUR SEPARATE SIGNED WRITTEN STATEMENT OF REVOCATION TO THE SELLER
DISAPPROVING THE SELLER’S DISCLOSURE UNLESS YOU WAIVE THIS RIGHT AT OR PRIOR TO
ENTERING INTO A SALE AGREEMENT.
BUYER
HEREBY ACKNOWLEDGES RECEIPT OF A COPY OF THIS SELLER’S PROPERTY DISCLOSURE
STATEMENT.
BUYER
______________________ DATE _______________
BUYER
______________________ DATE _______________
Agent
receiving disclosure statement on buyer’s behalf to sign and date:
______________________Real
Estate Licensee
______________________Real
Estate Firm
Date
received by agent ________
______________________________________________________________________________
[2003
c.328 §3; 2007 c.30 §13; 2007 c.866 §8; 2009 c.387 §18; 2009 c.591 §14a]
105.465
Application of ORS 105.462 to 105.490, 696.301 and 696.870; disclosure
statement. (1) The provisions of ORS 105.462 to
105.490, 696.301 and 696.870:
(a) Apply to the real property described
in subparagraphs (A) to (D) of this paragraph unless the buyer indicates to the
seller, which indication shall be conclusive, that the buyer will use the real
property for purposes other than a residence for the buyer or the buyer’s
spouse, parent or child:
(A) Real property consisting of or
improved by one to four dwelling units;
(B) A condominium unit as defined in ORS
100.005 and not subject to disclosure under ORS 100.705;
(C) A timeshare property as defined in ORS
94.803 and not subject to disclosure under ORS 94.829; and
(D) A manufactured dwelling, as defined in
ORS 446.003, that is owned by the same person who owns the land upon which the
manufactured dwelling is situated.
(b) Do not apply to a leasehold in real
property.
(2) Except as provided in ORS 105.475 (4),
a seller shall complete, sign and deliver a seller’s property disclosure
statement as set forth in ORS 105.464 to each buyer who makes a written offer
to purchase real property in this state. [1993 c.547 §1; 1997 c.816 §15; 1999
c.307 §24; 1999 c.677 §65; 2001 c.300 §74; 2003 c.328 §1]
105.470
Exclusions from ORS 105.462 to 105.490, 696.301 and 696.870.
ORS 105.462 to 105.490, 696.301 and 696.870 do not apply to:
(1) The first sale of a dwelling never
occupied, provided that the seller provides the buyer with the following
statement on or before the date the buyer is legally obligated to purchase the
subject real property: “THIS HOME WAS CONSTRUCTED OR INSTALLED UNDER BUILDING
OR INSTALLATION PERMIT(S) #___, ISSUED BY_____.”
(2) Sales by financial institutions that
acquired the property as custodian, agent or trustee, or by foreclosure or deed
in lieu of foreclosure.
(3) The following sellers, if appointed by
a court:
(a) Receivers;
(b) Personal representatives;
(c) Trustees;
(d) Conservators; or
(e) Guardians.
(4) Sales or transfers by governmental
agencies. [1993 c.547 §7; 1995 c.198 §1; 2003 c.328 §5]
105.475
Buyer’s statement of revocation of offer; criteria.
(1) If a seller issues a seller’s property disclosure statement and a buyer has
not then delivered to the seller a written statement waiving the buyer’s right
to revoke the buyer’s offer, the buyer shall have five business days after
delivery of the seller’s property disclosure statement to revoke the buyer’s
offer by delivering to the seller a separate signed written statement of
revocation disapproving the seller’s disclosure.
(2) If a buyer fails to timely deliver to
a seller a written statement revoking the buyer’s offer, the buyer’s right to
revoke the buyer’s offer expires.
(3) If a buyer closes the transaction, the
buyer’s right to revoke based on ORS 105.462 to 105.490, 696.301 and 696.870 is
terminated.
(4) If the seller fails or refuses to
provide a seller’s property disclosure statement as required under this
section, the buyer shall have a right of revocation until the right is
terminated pursuant to subsection (3) of this section.
(5) If the buyer revokes the offer
pursuant to this section, notwithstanding ORS 696.581, the buyer is entitled to
immediate return of all deposits and other considerations delivered to any
party or escrow agent with respect to the buyer’s offer, and the buyer’s offer
is void.
(6) When the deposits and other
considerations have been returned to the buyer, upon the buyer’s signed,
written release and indemnification of the holders of the deposits and other
considerations, the holders are released from all liability for the deposits
and other considerations.
(7) Any seller’s property disclosure
statement issued by the seller is part of and incorporated into the offer and
the acceptance. [1993 c.547 §§2,3; 2003 c.328 §6]
105.480
Representations in disclosure statement; application.
(1) The representations contained in a seller’s property disclosure statement
and in any amendment to the disclosure statement are the representations of the
seller only. The representations of the seller are not representations of:
(a) A financial institution that may have
made or that may make a loan pertaining to the property covered by a seller’s
property disclosure statement, or that may have or take a security interest in
the property covered by a seller’s property disclosure statement.
(b) A real estate licensee engaged by the
seller or buyer.
(2) Neither a financial institution nor a
real estate licensee is bound by or has any liability with respect to any
representation, misrepresentation, omission, error or inaccuracy contained in
the seller’s property disclosure statement required by ORS 105.465 or any
amendment to the disclosure statement. [1993 c.547 §4b; 1997 c.631 §400; 2001
c.300 §69; 2003 c.328 §7]
105.485
Allocation of burden of proof. The burden of
proof of lawful delivery of a seller’s property disclosure statement and any
amendment thereto is on the seller. The burden of proof of lawful delivery of a
notice of revocation of a buyer’s offer is on the buyer. [1993 c.547 §5; 2003
c.328 §8]
105.490
Effect of ORS 105.462 to 105.490, 696.301 and 696.870 on rights and remedies.
ORS 105.462 to 105.490, 696.301 and 696.870 do not directly, indirectly or by
implication limit or alter any preexisting common law or statutory right or
remedy including actions for fraud, negligence or equitable relief. [1993 c.547
§8; 2003 c.328 §9]
ACTIONS
AND SUITS FOR NUISANCES
105.505
Remedies available for private nuisance. Any person
whose property or personal enjoyment thereof is affected by a private nuisance,
may maintain an action for damages therefor. If judgment is given for the
plaintiff in the action, the plaintiff may, on motion, in addition to the
execution to enforce the judgment, obtain an order allowing a warrant to issue
to the sheriff to abate the nuisance. The motion must be made at the term at
which judgment is given, and shall be allowed of course, unless it appears on
the hearing that the nuisance has ceased or that such remedy is inadequate to
abate or prevent the continuance of the nuisance, in which latter case the
plaintiff may proceed to have the defendant enjoined. [Amended by 1979 c.284 §96]
105.510
Procedure for abating a nuisance. Not more than
six months after an order to abate is entered under ORS 105.505, the plaintiff
may file a request with the clerk of court for the issuance of a warrant to the
sheriff that directs the sheriff to abate the nuisance. The sheriff may require
that the plaintiff pay all sheriff’s fees required by ORS 21.300 before
executing the warrant, and may require that the plaintiff also pay all expenses
of the sheriff incurred in executing the warrant. [Amended by 2011 c.366 §2]
105.515
Stay of issuance of warrant to abate. At any time
before an order to abate is made or a warrant to abate is issued, the defendant
may, on motion to the court or judge thereof, have an order to stay the issuing
of the warrant for such period as may be necessary, not exceeding six months,
to allow the defendant to abate the nuisance, upon giving an undertaking to the
plaintiff in a sufficient amount, in the form of an irrevocable letter of
credit issued by an insured institution, as defined in ORS 706.008, or a bond
with one or more sureties, to the satisfaction of the court or judge thereof,
that the defendant will abate the nuisance within the time and in the manner
specified in the order. [Amended by 1991 c.331 §27; 1997 c.631 §401]
105.520
Justification of sureties; proceedings when nuisance is not abated.
If the plaintiff is not notified of the time and place of the application for the
order provided for in ORS 105.515, the sureties therein provided for shall
justify as bail upon arrest, otherwise the justification may be omitted unless
the plaintiff requires it. If the order is made and undertaking given, and the
defendant fails to abate the nuisance within the time specified in the order,
at any time within six months thereafter, the warrant for the abatement of the
nuisance may issue as if the warrant had not been stayed.
105.525
[Repealed by 1969 c.509 §8]
105.530
[Repealed by 1969 c.509 §8]
ABATEMENT
OF NUISANCE ACTIVITIES OR CONDITIONS
105.550
Definitions for ORS 105.550 to 105.600. As used in
ORS 105.550 to 105.600, unless the context requires otherwise:
(1) “Of record” means:
(a) With regard to real property, that an
owner’s interest is recorded in the public records provided for by Oregon
statutes where the owner’s interest must be recorded to perfect a lien or
security interest or provide constructive notice of the owner’s interest; or
(b) With regard to personal property, that
an owner’s interest is recorded in the public records under any applicable
state or federal law where the owner’s interest must be recorded to perfect a
lien or security interest, or provide constructive notice of the owner’s
interest.
(2) “Owner” means a person having any
legal or equitable interest in property, including, but not limited to, a
purchaser, lienholder or holder of any security interest in such property.
(3) “Place” or “property” includes, but is
not limited to, any premises, room, house, building or structure or any
separate part or portion thereof whether permanent or not or the ground itself
or any conveyance or any part or portion thereof. [1989 c.846 §2; 1999 c.168 §6]
105.555
Places declared nuisances subject to abatement.
(1) The following are declared to be nuisances and shall be enjoined and abated
as provided in ORS 105.550 to 105.600:
(a) Any place that, as a regular course of
business, is used for the purpose of prostitution and any place where acts of
prostitution or patronizing a prostitute occur;
(b) Any place that is used and maintained
for profit and for the purpose of gambling or a lottery, as defined in ORS
167.117, by any person, partnership or corporation organized for profit and
wherein take place any of the acts or wherein are kept, stored or located any
of the games, devices or things that are forbidden by or made punishable by ORS
167.108 to 167.164;
(c) Any place that has been determined to
be not fit for use under ORS 453.876 and that has not been decontaminated and
certified as fit for use under ORS 453.885 within 180 days after the
determination under ORS 453.876; and
(d) Any place where activity involving the
unauthorized delivery, manufacture or possession of a controlled substance, as
defined in ORS 475.005, occurs or any place wherein are kept, stored or located
any of the devices, equipment, things or substances used for unauthorized
delivery, manufacture or possession of a controlled substance. As used in this
paragraph, “devices, equipment, things” does not include hypodermic syringes or
needles. This paragraph does not apply to acts that constitute violations under
ORS 475.860 or 475.864.
(2) Nothing in ORS 105.550 to 105.600,
166.715 and 167.158 applies to property to the extent that the devices,
equipment, things or substances that are used for delivery, manufacture or
possession of a controlled substance are kept, stored or located in or on the
property for the purpose of lawful sale or use of these items. [1989 c.846 §3;
1989 c.915 §24; 1999 c.168 §7; 2005 c.706 §1; 2005 c.708 §43; 2011 c.151 §6]
105.560
Action to restrain or enjoin nuisance; jurisdiction; remedies.
(1) An action to restrain or enjoin a nuisance described in ORS 105.555 may be
brought by the Attorney General, district attorney, county attorney, city
attorney or a person residing or doing business in the county where the
property is located. The action shall be brought in the circuit court in the
county where the property is located. Except as provided in subsection (5) of this
section, the action may be commenced in the small claims department of the
circuit court for the county where the property is located.
(2) In addition to any other remedy that
may be available under ORS 105.550 to 105.600, a plaintiff in an action brought
to restrain or enjoin a nuisance described in ORS 105.555 may seek damages for
mental suffering, emotional distress, inconvenience and interference with the
use of property suffered by the plaintiff by reason of the activities
constituting a nuisance.
(3) The court may award reasonable
attorney fees to the prevailing party in an action under ORS 105.550 to 105.600
unless the action is commenced and tried in the small claims department of a
circuit court. Attorney fees may not be awarded to any party in an action under
ORS 105.550 to 105.600 that is commenced and tried in the small claims
department of a circuit court.
(4) The court may consolidate all actions
that relate to the same property and that are brought to restrain or enjoin a
nuisance described in ORS 105.555. Consolidation in the small claims department
of a circuit court shall be for purposes of trial only. A separate judgment
shall be entered for each action in the small claims department of a circuit
court.
(5) An action may not be brought in the
small claims department of a circuit court to restrain or enjoin a nuisance
described in ORS 105.555 if the property alleged to be a nuisance is licensed
under ORS chapter 471. [1989 c.846 §4; 1999 c.168 §1; 2009 c.11 §7]
105.565
Complaint; service; jury trial; admissibility of reputation as evidence.
(1) Any action shall be commenced by the filing of a complaint alleging facts
constituting the nuisance, and containing a legal description of the property
involved and an allegation that the owners of record of the property have been
notified of the facts giving rise to the alleged nuisance at least 10 days
prior to the filing of the action with the court. The complaint must specify
whether the plaintiff will seek the remedy provided in ORS 105.580 (2).
(2) The complaint shall be served on
owners of record as provided in ORCP 7. No service need be made prior to an
application for a temporary restraining order, provided the procedures of ORCP
79 B are followed with regard to all persons entitled to service under this
section.
(3) Except in those cases tried in the
small claims department of a circuit court, any party may demand a trial by
jury in any action brought under ORS 105.550 to 105.600.
(4) On the issue of whether property is
used in violation of ORS 105.555, evidence of its general reputation and the
reputation of persons residing in or frequenting it shall be admissible. [1989
c.846 §5; 1999 c.168 §2]
105.570
[Formerly 465.140; repealed by 1999 c.168 §12]
105.575
Precedence of action on court docket. An action
under ORS 105.550 to 105.600 shall have precedence over all other actions,
except prior matters of the same character, criminal proceedings and election
contests. [1989 c.846 §6; 1999 c.168 §8]
105.580
Order of abatement; cancellation. (1) Except as
provided in subsection (3) of this section, if the existence of the nuisance is
established in the action, an order of abatement shall be entered as part of
the general judgment in the case.
(2) The order of abatement may direct the
effectual closing of the premises, building or place against its use for any
purpose, and so keeping it closed for a period of one year, unless sooner
released. The court shall not include provisions for the closing of the
premises under the provisions of this subsection unless that relief is
specifically requested in the complaint.
(3) The court, if satisfied of an owner’s
good faith, shall enter no order of abatement as to that owner if the court
finds that the owner:
(a) Had no knowledge of the existence of
the nuisance or has been making reasonable efforts to abate the nuisance;
(b) Has not been guilty of any contempt of
court in the proceedings; and
(c) Will make best efforts to immediately
abate any nuisance that may exist and prevent it from being a nuisance for a
period of one year thereafter.
(4) Except for an order of abatement
entered based on the manufacture of a controlled substance, if an order of
abatement has been entered and an owner subsequently meets the requirements of
this section, the order of abatement shall be canceled as to that owner.
(5) If the court enters an order under
this section on the basis that the property was used for the manufacture of a
controlled substance, the court shall send a copy of the order to the Director of
the Oregon Health Authority. The director or the director’s designee shall
declare the property to be an illegal drug manufacturing site for purposes of
ORS 453.855 to 453.912. An order of the court under this section shall not be
canceled until the director or the director’s designee determines the property
to be fit for use. Upon determining the property to be fit for use, the
director or designee shall notify the court, which shall cancel the abatement
order. [1989 c.846 §7; 1997 c.769 §1; 1999 c.168 §3; 2003 c.576 §238; 2009
c.595 §65]
105.585
Costs of securing or decontaminating property as lien; priority of lien; filing
notice of pendency. (1) Any costs associated with
securing the property under ORS 105.550 to 105.600 shall constitute a lien against
the property declared to be a nuisance from the time a notice specifying the
costs is filed of record.
(2) Any costs incurred by the county or
local government to secure a property that is a nuisance described in ORS
105.555 (1)(c) and have the property decontaminated and certified as fit for
use under ORS 453.885 shall constitute a lien against the property declared to
be a nuisance from the time a notice specifying the costs is filed of record.
Notwithstanding subsection (3) of this section, the priority of a lien created
under this subsection is governed by ORS 453.886 (4).
(3) A lien created by ORS 105.550 to
105.600 is prior and superior to all other liens, mortgages and encumbrances
against the property upon which the lien is imposed that attached to the
property after any lien imposed by ORS 105.550 to 105.600.
(4) A notice of pendency of an action may
be filed pursuant to ORS 93.740 with respect to any action filed under ORS
105.550 to 105.600. [1989 c.846 §8; 1999 c.168 §4; 2007 c.673 §2]
105.590
Penalty for intentional violation of restraining order.
An intentional violation of a restraining order, preliminary injunction or
order of abatement under ORS 105.550 to 105.600 is a Class B misdemeanor. [1989
c.846 §9; 1999 c.168 §9; 2011 c.597 §159]
105.595
Action to abate nuisance not to affect other remedies; exception.
Except to the extent that a judgment has been entered in the action for damages
under ORS 105.560 (2), the abatement of a nuisance under ORS 105.550 to 105.600
does not prejudice the right of any person to recover damages for its past
existence. [1989 c.846 §10; 1999 c.168 §5]
105.600
ORS 105.550 to 105.600 not to limit authority of cities or counties to further
restrict activities. The provisions of ORS 105.550 to
105.600, 166.715 and 167.158 shall not be construed to limit the powers of
cities and counties to adopt ordinances and regulations that further restrict
the activities declared by ORS 105.555 to be nuisances provided that no such
ordinance or regulation shall affect real or personal property unless it is
consistent with the provisions of ORS 105.550 to 105.600, 166.715 and 167.158. [1989
c.846 §11]
SUITS
TO QUIET TITLE AND REMOVE CLOUD
105.605
Suits to determine adverse claims. Any person
claiming an interest or estate in real property not in the actual possession of
another may maintain a suit in equity against another who claims an adverse
interest or estate therein for the purpose of determining such conflicting or
adverse claims, interests or estates. Any municipal corporation or county of
this state claiming any interest or estate in real property which is not in the
actual possession of another, including real property acquired by foreclosure
of delinquent tax liens situated in the same county, may maintain a suit in
equity against all persons who claim an adverse interest or estate in all or
any part of the property for the purpose of determining the conflicting or
adverse claims, interests or estates. One or more parcels may be included in
one suit and the issue made by the pleadings in any suit by a municipality or
county relating only to a certain parcel or part of the real property, shall be
separately tried and determined upon motion of any interested party.
105.610
Suit to cancel patent of donee under Donation Law.
Whenever any person claims real property as a donee of the United States by
virtue of a settlement thereon under the Act of Congress approved September 27,
1850, commonly called the Donation Law, or the Acts amendatory thereto, and the
patent for such property, or any portion thereof, was wrongfully issued to
another, the person may maintain a suit in equity against the person to whom
the patent was issued, or those claiming under the person, for the purpose of
having the patent canceled, and the estate or interest of the plaintiff in the
property ascertained and established. In such suit, the party entitled to and
making the settlement under such Acts of Congress, and complying with the
subsequent conditions thereby required, is deemed to have a legal estate in fee
in the property although the patent therefor was issued to another.
105.615
Action by tenant in common against cotenants. Unless
otherwise agreed or provided in a granting document, a tenant in common of real
property may acquire fee simple title to the real property by adverse
possession as against all other cotenants if the tenant in common or the tenant
in common’s predecessor in interest has been in possession of the real
property, exclusive of all other cotenants, for an uninterrupted period of 20
years or more and has paid all taxes assessed against such property while in
possession. Notice of the exclusive possession need not be given to the other
cotenants by the cotenant in possession. [1969 c.350 §1; 1989 c.1069 §3]
105.618
Adverse possession of railroad property. A person may
not acquire by adverse possession, as defined in ORS 105.620, property owned by
a railroad or used for a railroad operation. [2007 c.440 §1]
105.620
Acquiring title by adverse possession. (1) A person may
acquire fee simple title to real property by adverse possession only if:
(a) The person and the predecessors in
interest of the person have maintained actual, open, notorious, exclusive,
hostile and continuous possession of the property for a period of 10 years;
(b) At the time the person claiming by
adverse possession or the person’s predecessors in interest, first entered into
possession of the property, the person entering into possession had the honest
belief that the person was the actual owner of the property and that belief:
(A) By the person and the person’s
predecessor in interest, continued throughout the vesting period;
(B) Had an objective basis; and
(C) Was reasonable under the particular
circumstances; and
(c) The person proves each of the elements
set out in this section by clear and convincing evidence.
(2)(a) A person maintains “hostile
possession” of property if the possession is under claim of right or with color
of title. “Color of title” means the adverse possessor claims under a written
conveyance of the property or by operation of law from one claiming under a
written conveyance.
(b) Absent additional supporting facts,
the grazing of livestock is insufficient to satisfy the requirements of
subsection (1)(a) of this section.
(3) As used in this section and ORS
105.005 and 105.615, “person” includes, but is not limited to, the state and
its political subdivisions as created by statute. [1989 c.1069 §1; 1991 c.109 §2;
1999 c.950 §1]
UNIFORM
DISCLAIMER OF PROPERTY INTERESTS
105.623
Short title. ORS 105.623 to 105.649 may be cited as
the Uniform Disclaimer of Property Interests Act. [2001 c.245 §1]
105.624
Definitions for ORS 105.623 to 105.649. As used in
ORS 105.623 to 105.649:
(1) “Disclaimant” means the person to whom
a disclaimed interest or power would have passed had the disclaimer not been
made.
(2) “Disclaimed interest” means the
interest that would have passed to the disclaimant had the disclaimer not been
made.
(3) “Disclaimer” means the refusal to
accept an interest in property or a power over property.
(4) “Fiduciary” means a personal
representative, trustee, agent acting under a power of attorney or other person
authorized to act as a fiduciary with respect to the property of another
person.
(5) “Jointly held property” means property
held in the name of two or more persons under an arrangement pursuant to which:
(a) All holders have concurrent interests;
and
(b) The last surviving holder is entitled
to the whole of the property.
(6) “Person” means an individual,
corporation, business trust, partnership, limited liability company,
association, joint venture, government, governmental subdivision, agency,
public corporation or any other legal or commercial entity.
(7) “State” means a state of the United
States, the District of Columbia, Puerto Rico, the United States Virgin Islands
or any territory or insular possession subject to the jurisdiction of the
United States. The term includes an Indian tribe or band, or Alaskan native
village, recognized by federal law or formally acknowledged by another state.
(8) “Trust” means:
(a) A charitable or noncharitable express
trust, including any additions made to the trust, whenever and however created;
and
(b) A trust created pursuant to a statute
or judgment that requires the trust to be administered in the same manner as an
express trust. [2001 c.245 §2; 2003 c.576 §369; 2009 c.294 §15]
105.625
[1975 c.622 §8; repealed by 2001 c.245 §19]
105.626
Scope. ORS 105.623 to 105.649 apply to
disclaimers of any interest in or power over property without regard to when
the interest or power that is disclaimed was created. [2001 c.245 §3]
105.627
[1975 c.622 §1; 1981 c.56 §1; repealed by 2001 c.245 §19]
105.628
Effect on other law. (1) Unless displaced by a
provision of ORS 105.623 to 105.649, the principles of law and equity
supplement ORS 105.623 to 105.649.
(2) ORS 105.623 to 105.649 do not limit
any right of a person to waive, release, disclaim or renounce an interest in
property, or power over property, under a law other than ORS 105.623 to
105.649. [2001 c.245 §4]
105.629
Power to disclaim; general requirements; when irrevocable.
(1) A person may disclaim, in whole or part, any interest in property or any
power over property, including a power of appointment. A person may disclaim
the interest or power even if the person who created the interest or power
imposed a spendthrift provision or similar restriction on transfer or imposed a
restriction or limitation on the right to disclaim.
(2) Except to the extent that a fiduciary’s
right to disclaim is expressly restricted or limited by another statute of this
state or by the instrument creating the fiduciary relationship, a fiduciary may
disclaim, in whole or part, any interest in property or power over property,
including a power of appointment, without regard to whether the fiduciary is
acting in a personal or representative capacity. A fiduciary may disclaim the
interest or power even if the creator of the interest or power imposed a
spendthrift provision or similar restriction on transfer or a restriction or
limitation on the right to disclaim, or an instrument other than the instrument
that created the fiduciary relationship imposed a restriction or limitation on
the right to disclaim.
(3) To be effective, a disclaimer must:
(a) Be in writing or otherwise recorded by
inscription on a tangible medium or by storage in an electronic or other medium
in a manner that allows the disclaimer to be retrieved in perceivable form;
(b) Declare that the person disclaims the
interest in the property or in the power;
(c) Describe the interest in property or
power over property that is disclaimed;
(d) Be signed by the person making the
disclaimer; and
(e) Be delivered or filed in the manner
provided in ORS 105.642.
(4) A partial disclaimer may be expressed
as a fraction, percentage, monetary amount, term of years, limitation of a
power or as any other interest or estate in the property.
(5) A disclaimer is irrevocable when the
disclaimer is delivered or filed pursuant to ORS 105.642 or when the disclaimer
becomes effective as provided in ORS 105.633 to 105.641, whichever occurs
later.
(6) A disclaimer made under ORS 105.623 to
105.649 is not a transfer, assignment or release. [2001 c.245 §5]
105.630
[1975 c.622 §2; 1981 c.56 §2; 1983 c.740 §10; 1997 c.813 §1; repealed by 2001
c.245 §19]
105.632
[1975 c.622 §3; 1981 c.56 §3; 1997 c.813 §2; repealed by 2001 c.245 §19]
105.633
Disclaimer of interest in property. (1) For the
purposes of this section:
(a) “Time of distribution” means the time
when a disclaimed interest would have taken effect through possession or
enjoyment.
(b) “Future interest” means an interest
that takes effect through possession or enjoyment, if at all, at a time later
than the time that the interest is created.
(2) Except for a disclaimer governed by
ORS 105.634 or 105.636, the following rules apply to a disclaimer of an
interest in property:
(a) The disclaimer takes effect when the
instrument creating the interest becomes irrevocable or, if the interest arises
under the law of intestate succession, when the decedent dies.
(b) The disclaimed interest passes
according to any provision in the instrument creating the interest providing
for the disposition of the specific interest in the event the interest is
disclaimed, or according to any provision in the instrument creating the
interest providing for the disposition of interests in general in the event the
interests created by the instrument are disclaimed.
(3) If the instrument creating the
interest does not contain a provision described in subsection (2)(b) of this
section, or if the interest arises under the law of intestate succession, the
following rules apply:
(a)(A) If the disclaimant is an
individual, except as otherwise provided in subparagraphs (B) and (C) of this
paragraph, the disclaimed interest passes as if the disclaimant had died
immediately before the time of distribution.
(B) If by law or under the instrument the
descendants of the disclaimant would share in the disclaimed interest by any
method of representation had the disclaimant died before the time of
distribution, the disclaimed interest passes only to the descendants of the
disclaimant who survive the time of distribution.
(C) If the disclaimed interest would pass
to the disclaimant’s estate had the disclaimant died before the time of
distribution, the disclaimed interest instead passes by representation to the
descendants of the disclaimant who survive the time of distribution. If no
descendant of the disclaimant survives the time of distribution, the disclaimed
interest passes to those persons, including the state, but excluding the
disclaimant, and in such shares, as would succeed to the transferor’s intestate
estate under the intestate succession law of the transferor’s domicile had the
transferor died at the time of distribution. However, if the transferor’s
surviving spouse is living but is remarried at the time of distribution, the
transferor is deemed to have died unmarried at the time of distribution.
(b) If the disclaimant is not an
individual, the disclaimed interest passes as if the disclaimant did not exist.
(4) Upon the disclaimer of a preceding
interest, a future interest held by a person other than the disclaimant takes
effect as if the disclaimant had died or ceased to exist immediately before the
time of distribution, but a future interest held by the disclaimant is not
accelerated in possession or enjoyment. [2001 c.245 §6; 2009 c.17 §1]
105.634
Disclaimer of rights of survivorship in jointly held property.
(1) Upon the death of a holder of jointly held property, a surviving holder may
disclaim, in whole or part, the greater of:
(a) A fractional share of the property
determined by dividing the number one by the number of joint holders alive
immediately before the death of the holder to whose death the disclaimer
relates; or
(b) All of the property except that part
of the value of the entire interest attributable to the contribution furnished
by the disclaimant.
(2) A disclaimer under subsection (1) of
this section takes effect upon the death of the holder of jointly held property
to whose death the disclaimer relates.
(3) An interest in jointly held property
disclaimed by a surviving holder of the property passes as if the disclaimant
predeceased the holder to whose death the disclaimer relates. [2001 c.245 §7]
105.635
[1975 c.622 §4; 1981 c.56 §4; repealed by 2001 c.245 §19]
105.636
Disclaimer of interest by trustee. If a trustee
disclaims an interest in property that otherwise would have become trust property,
the interest does not become trust property. [2001 c.245 §8]
105.637
[1975 c.622 §5; repealed by 2001 c.245 §19]
105.638
Disclaimer of power of appointment or other power not held in fiduciary
capacity. If a holder disclaims a power of
appointment or other power not held in a fiduciary capacity, the following
rules apply:
(1) If the holder has not exercised the
power, the disclaimer takes effect as of the time the instrument creating the
power becomes irrevocable.
(2) If the holder has exercised the power
and the disclaimer is of a power other than a presently exercisable general
power of appointment, the disclaimer takes effect immediately after the last
exercise of the power.
(3) The instrument creating the power is
construed as if the power expired when the disclaimer became effective. [2001
c.245 §9]
105.639
Disclaimer by appointee, object or taker in default of exercise of power of
appointment. (1) A disclaimer of an interest in
property by an appointee of a power of appointment takes effect as of the time
the instrument by which the holder exercises the power becomes irrevocable.
(2) A disclaimer of an interest in
property by a person who is an object of an exercise of a power of appointment,
or by a person who is a taker in default of an exercise of a power of
appointment, takes effect as of the time the instrument creating the power
becomes irrevocable. [2001 c.245 §10]
105.640
[1975 c.622 §7; repealed by 2001 c.245 §19]
105.641
Disclaimer of power held in fiduciary capacity.
(1) If a fiduciary disclaims a power held in a fiduciary capacity that has not
been exercised, the disclaimer takes effect as of the time the instrument
creating the power becomes irrevocable.
(2) If a fiduciary disclaims a power held
in a fiduciary capacity that has been exercised, the disclaimer takes effect
immediately after the last exercise of the power.
(3) A disclaimer under this section
applies to another fiduciary if the disclaimer so provides and the fiduciary
disclaiming has the authority to bind the estate, trust or other person for
whom the fiduciary is acting. [2001 c.245 §11]
105.642
Delivery or filing. (1) As used in this section, “beneficiary
designation” means an instrument, other than an instrument creating a trust,
naming the beneficiary of:
(a) An annuity or insurance policy;
(b) An account with a designation for
payment on death;
(c) A security registered in beneficiary
form;
(d) A pension, profit-sharing, retirement
or other employment-related benefit plan; or
(e) Any other nonprobate transfer at
death.
(2) Subject to subsections (3) to (12) of
this section, delivery of a disclaimer may be made by personal delivery, first
class mail or any other method likely to result in receipt of the disclaimer.
(3) If the interest to be disclaimed is
created under the law of intestate succession or an interest created by will,
other than an interest in a testamentary trust:
(a) A disclaimer must be delivered to the
personal representative of the decedent’s estate; or
(b) If a personal representative is not
serving at the time the disclaimer is made, the disclaimer must be filed with a
court having authority to appoint the personal representative.
(4) In the case of an interest in a
testamentary trust:
(a) A disclaimer must be delivered to the
trustee;
(b) If a trustee is not serving at the
time the disclaimer is made but a personal representative for the decedent’s
estate is serving, the disclaimer must be delivered to the personal
representative; or
(c) If neither a trustee nor a personal
representative is serving at the time the disclaimer is made, the disclaimer
must be filed with a court having authority to enforce the trust.
(5) In the case of an interest in an inter
vivos trust:
(a) A disclaimer must be delivered to the
trustee serving at the time the disclaimer is made;
(b) If a trustee is not serving at the
time the disclaimer is made, the disclaimer must be filed with a court having
authority to enforce the trust; or
(c) If the disclaimer is made before the
time the instrument creating the trust becomes irrevocable, the disclaimer must
be delivered to the settlor of a revocable trust or the transferor of the
interest.
(6) In the case of an interest created by
a beneficiary designation made before the time the designation becomes irrevocable,
a disclaimer must be delivered to the person making the beneficiary
designation.
(7) In the case of an interest created by
a beneficiary designation made after the time the designation becomes
irrevocable, a disclaimer must be delivered to the person obligated to
distribute the interest.
(8) In the case of a disclaimer by a
surviving holder of jointly held property, the disclaimer must be delivered to
the person to whom the disclaimed interest passes.
(9) In the case of a disclaimer by a
person who is an object of an exercise of a power of appointment or a taker in
default of an exercise of a power of appointment at any time after the power
was created:
(a) The disclaimer must be delivered to
the holder of the power or to the fiduciary acting under the instrument that
created the power; or
(b) If a fiduciary is not serving at the
time the disclaimer is made, the disclaimer must be filed with a court having
authority to appoint the fiduciary.