Chapter 87

87.001 to 87.060

NOTES OF DECISIONS

In absence of express waiver by contractor of right to file construction lien, agreement to arbitrate disputes did not prevent filing of lien and thereafter foreclosing to recover unpaid amounts and costs and attorney fees incurred in preparation, filing and foreclosure of lien claim. Harris v. Dyer, 50 Or App 223, 623 P2d 662 (1981), as modified by 292 Or 233, 637 P2d 918 (1981)

87.005

NOTES OF DECISIONS

Where plaintiff, in course of preparation of land for construction of log dump, provided drop boxes and hauled them away when filled with debris, this was act of preparation for improvement to land within meaning of this section and gave rise to mechanic’s lien under ORS 87.010. Abajian v. Hill, 42 Or App 695, 601 P2d 837 (1979)

Subcontractor is other person having charge of construction or preparation and therefore qualifies as construction agent. Steel Products Co. v. Portland Gen. Elec., 291 Or 41, 628 P2d 1180 (1981)

LAW REVIEW CITATIONS: 41 WLR 95 (2005)

87.010

NOTES OF DECISIONS

Unpaid subcontractor materialman could maintain action against insurer on contractor’s bond, which promised to “pay all persons who performed work”; overruling to extent of inconsistency, Tait & Co. v. D. Diamond Corp., 228 Or 602, 365 P2d 883 (1961). Jacobs Associates v. Argonaut Ins. Co., 282 Or 551, 580 P2d 529 (1978)

Specific notice to materialman that check is intended for payment on particular project requires that payment be credited toward lien on that project. Empire Building Supply, Inc. v. EKO Investments, Inc., 40 Or App 739, 596 P2d 593 (1979)

Providing drop boxes and hauling them away when filled with debris was act of preparation for improvement to land and gave rise to lien under this section. Abajian v. Hill, 42 Or App 695, 601 P2d 837 (1979)

Damages incurred as result of owner’s breach of contract that do not relate to anything that became part of the improvement do not add any value to the improvement and thus, although recoverable under general contract principles, are not subject to statutory lien. Minter-Wilson Drilling Co. v. Richins, 60 Or App 702, 655 P2d 1060 (1982), Sup Ct review denied

Excavation and grading of parking area come within definition of “improvement” and are lienable. Robertson, Hay & Wallace v. Kunkle, 69 Or App 99, 686 P2d 399 (1984)

Claims relating to labor and materials performed and supplied off premises are lienable where lease required that work be done and improvements enhanced value of mortgagee’s security interest. Robertson, Hay & Wallace v. Kunkle, 69 Or App 99, 686 P2d 399 (1984)

Material “to be used in” construction need not become part and parcel of improvement for lien to attach. Rotarius v. Edwards, 147 Or App 484, 936 P2d 401 (1997)

Commingling of lienable and nonlienable charges does not invalidate lien if property owner has sufficient knowledge to question amount of lien or can readily obtain sufficient information to separate lienable and nonlienable charges. A-C Construction, Inc. v. Bakke Corp., 153 Or App 41, 956 P2d 219 (1998), Sup Ct review denied

Lien in favor of trustees of construction worker employee benefit plan is not preempted by Employee Retirement Income Security Act. Trustees of Plumbers and Pipefitters National Pension Fund v. Farmington Casualty Co., 33 F. Supp. 2d 904 (D. Or. 1998)

Labor union, union benefit plan trustees and union collection agent are ineligible to sue in representational capacity on behalf of union member who is “person performing labor.” International Brotherhood of Electrical Workers Local No. 48 v. Oregon Steel Mills, Inc., 168 Or App 101, 5 P3d 1122 (2000), Sup Ct review denied

Provision allowing trustee of employee benefit plan

to file lien to collect payments due plan is not preempted by Employee Retirement Income Security Act. International Brotherhood of Electrical Workers Local No. 48 v. Oregon Steel Mills, Inc., 168 Or App 101, 5 P3d 1122 (2000), Sup Ct review denied

ATTY. GEN. OPINIONS: Validity of mechanics lien in home solicitation sale where notice of cancellation not given, (1974) Vol 37, p 316

LAW REVIEW CITATIONS: 41 WLR 95 (2005)

87.015

NOTES OF DECISIONS

Interest of a vendor of land under a contract of sale is subject to a lien. Tri-City Bldg. Center, Inc. v. Wagner, 274 Or 581, 548 P2d 961 (1976)

87.021

See also annotations under ORS 87.020 in permanent edition.

NOTES OF DECISIONS

Pre-1983 version of this statute, providing that those who furnish material or supplies must give delivery notice to owner of construction site as prerequisite to enforceability of liens, does not apply to those who provide rental equipment. Star Rentals, Inc. v. Seeberg Construction Co., 66 Or App 822, 677 P2d 708 (1984), Sup Ct review denied

To qualify as “labor upon an improvement,” the work of a subcontractor need not be specified amount and such work may be primarily that of correcting errors. Northwest Ironworks v. Rippling River, 71 Or App 144, 691 P2d 111 (1984), Sup Ct review denied

This section requires that notice of right to lien be given during progress of improvement. Sun Solutions, Inc. v. Brandt, 300 Or 317, 709 P2d 1079 (1985)

Where person performs labor upon commercial improvement or provides labor and material for commercial improvement, notice of right to lien is not required if person labors at site of commercial improvement. Teeny v. Haertl Constructors, Inc., 314 Or 688, 842 P2d 788 (1992)

Where subcontractor took measurements at commercial improvement site as incident to supplying material, such contacts with job site are not labor on site within notice requirement exception. Teeny v. Haertl Constructors, Inc., 314 Or 688, 842 P2d 788 (1992)

ATTY. GEN. OPINIONS: Enforcement by subcontractor of lien rights against owner of residence where prime contractor has failed to give proper notice or has been paid in full but failed to pay subcontractor, (1981) Vol. 42, p 149

87.025

NOTES OF DECISIONS

This statute does not require notice to holders of both prior and subsequently recorded mortgages and thus the construction lien took precedence over mortgage not recorded until after holder of the lien commenced to deliver materials to the property. Hickey v. Polachek, 63 Or App 784, 666 P2d 294 (1983)

For person claiming lien based on provision of materials to obtain priority over prior mortgagee, lien claimant must provide mortgagee with notice of materials provided, whether or not labor is also provided. Safeport, Inc. v. Equipment Roundup & Manufacturing, Inc., 184 Or App 690, 60 P3d 1076 (2002), Sup Ct review denied

LAW REVIEW CITATIONS: 41 WLR 95 (2005)

87.030

NOTES OF DECISIONS

Because “construction” refers to ongoing process of creating property improvement, principle of constructive request does not apply where owner first becomes aware of improvement after completion. Miller v. Ogden, 134 Or App 589, 896 P2d 596 (1995), aff’d 325 Or 248, 935 P2d 1205 (1997)

87.035

NOTES OF DECISIONS

In general

“Credits and offsets” include only amounts between subcontractor and general or prime contractor and do not include amounts between lienor and third party. Jersey & Son Inc. v. Bailey Const. Co., 262 Or 491, 499 P2d 817 (1972)

Property owners were not entitled to rely on labeling of items in lien claim where item description did not mislead property owners as to amount of valid lien. Myers v. Oregon Shores Associates, 69 Or App 624, 687 P2d 159 (1984), Sup Ct review denied

Time for filing generally

When builder, after substantial completion of structure, at request of owner, makes additions to it which are useful or necessary to its enjoyment, the final completion dates from time such additions are made. Farrell v. Lacey, 264 Or 505, 507 P2d 31 (1973)

Even though owner in fee of property may be subject to a lien unless he posts notice of nonliability under ORS 87.030, the lien, to be valid, must still be filed within time required by this section. Maddox v. Balboa Raceways, Inc., 267 Or 321, 516 P2d 1293 (1973)

Where improvements must necessarily be used as a unit and all are intended to be immediately constructed, temporary interruptions beyond the control of the owner or builder, will not interrupt or terminate the time within which to file mechanic’s liens. Tri-City Bldg. Center, Inc. v. Wagner, 274 Or 581, 548 P2d 961 (1976)

Where evidence showed construction project was abandoned, the 60-day time period for filing a lien under this section would start to run 60 days after work ceased. D.E.C. Eng. and Surveying v. G & J Invest., 57 Or App 742, 646 P2d 643 (1982)

Performance of repair work under warranty did not extend time for filing lien claim. Central Coast Electric v. Mendell, 66 Or App 42, 672 P2d 1224 (1983)

If owner or mortgagee elects to post and record notice of completion as provided in ORS 87.045, date of notice is determinative of completion date within the meaning of this section. Star Rentals, Inc. v. Seeberg Construction Co., 66 Or App 822, 677 P2d 708 (1984), Sup Ct review denied

Construction was completed when pump was repaired and reinstalled because of laborer’s contention that continuing malfunctions of pump were due to problems with well itself and not with pump and time for filing lien began at that point. Austin v. Carver, 85 Or App 529, 737 P2d 639 (1987)

Limitation period for filing began running on date contractor ceased working on project without regard to whether or not project was abandoned. Emmert Industrial Corp. v. Sanders, 131 Or App 113, 883 P2d 1304 (1994), Sup Ct review denied

Who are original contractors

“An original contractor” is one who furnishes labor or material and labor on contract direct with owner. Maddox v. Balboa Raceways, Inc., 267 Or 321, 516 P2d 1293 (1973)

One who furnishes labor and materials on contract direct with a lessee from owner, but not direct with owner, may be “original contractor” with respect to validity of its lien against the lessee from owner, but is not an “original contractor” with respect to validity of its lien against owner. Maddox v. Balboa Raceways, Inc., 267 Or 321, 516 P2d 1293 (1973)

Description of property

Where description of property in lien notice incorrectly stated address and tax lot number and referred to business establishment on property by incorrect name, but contained sufficient information to enable interested parties to identify property and no prejudice was shown, there was substantial compliance with this section and lien was valid. C-3 Builders, Inc. v. Krueger, 56 Or App 502, 642 P2d 344 (1982), Sup Ct review denied

Use of word “description” by this section does not mean lien claim must contain legal description of property covered by lien. C-3 Builders, Inc. v. Krueger, 56 Or App 502, 642 P2d 344 (1982), Sup Ct review denied

Description requirement of general recordation statute does not apply to construction lien. Bell Hardware v. Ed Szoyka Woodworking Co., 129 Or App 332, 879 P2d 208 (1994), Sup Ct review denied

Whether there has been substantial compliance with statutory requirement depends on degree of noncompliance, underlying policy of requirement and prejudice that property owner or third party may have suffered as result of noncompliance. C-3 Builders, Inc. v. Krueger, 56 Or App 502, 642 P2d 344 (1982), Sup Ct review denied; Tigard Sand & Gravel Co. v. LBH Construction, 149 Or App 131, 941 P2d 1075 (1997)

ATTY. GEN. OPINIONS: Enforcement by subcontractor of lien rights against of residence owner where prime contractor has failed to give proper notice or has been paid in full but failed to pay subcontractor, (1981) Vol 42, p 149

LAW REVIEW CITATIONS: 41 WLR 95 (2005)

87.039

NOTES OF DECISIONS

It was improper for trial court to deny costs and attorney fees under this section where plaintiff gave notice in substantial compliance with the statutory requirements. Laro Lumber Company v. Patrick, 52 Or App 1035, 630 P2d 400 (1981)

87.045

NOTES OF DECISIONS

Where evidence showed construction project was abandoned, the 60-day time period for filing a lien under ORS 87.035 would start to run 60 days after work ceased. D.E.C. Eng. and Surveying v. G & J Invest., 57 Or App 742, 646 P2d 643 (1982)

If owner or mortgagee elects to post and record notice of completion, date of notice is determinative of completion date within the meaning of ORS 87.035. Star Rentals, Inc. v. Seeberg Construction Co., 66 Or App 822, 677 P2d 708 (1984), Sup Ct review denied

LAW REVIEW CITATIONS: 41 WLR 95 (2005)

87.055

NOTES OF DECISIONS

Construction lien could not be foreclosed against interest of owners of real property where lienor did not join owners as defendants to foreclosure until more than six months after lien was filed. Wood Panel Structures v. Grangaard, 55 Or App 294, 637 P2d 1320 (1981)

87.057

NOTES OF DECISIONS

Mortgagee is entitled to notice whether or not necessary party to foreclosure. Molalla Pump & Heating Co. v. Chaney, 42 Or App 789, 602 P2d 874 (1979)

Where defendant files surety bond guaranteeing payment of construction lien before plaintiff commences action to foreclose lien, plaintiff’s failure to plead and prove it gave mortgagee notice of intent to foreclose does not bar award of attorney fees when mortgagee is neither necessary nor permissive party to action. Morse Bros. Contractors v. C.J.H. Construction Co., 66 Or App 901, 675 P2d 1122 (1984)

87.060

NOTES OF DECISIONS

In general

This section did not apply where the case was filed prior to the effective date of this section. Harder Mechanical Contractors, Inc. v. Fairfield Erectors, Inc., 278 Or 613, 564 P2d 1356 (1977)

Failure to serve notice does not waive right to have action proceed with court sitting as trier of fact in place of jury. B & D Investment Corp. v. Petticord, 48 Or App 345, 617 P2d 276 (1980), Sup Ct review denied

Where this section required claims to be tried to two different factfinders, res judicata and law of case did not preclude judge and jury from making different findings concerning same fact on different claims in one action. Westwood Corp. v. Bowen, 108 Or App 310, 815 P2d 1282 (1991)

Where overstatement of lien amount is not result of fraud or gross negligence, lien remains enforceable to extent of proper amount. Stricker v. Taylor, 158 Or App 608, 975 P2d 930 (1999)

Surety on release of lien bond need not be made party to underlying action to foreclose lien against bond. Valencich v. TMT Homes of Oregon, Inc., 193 Or App 47, 88 P3d 300 (2004)

Attorney fees

In suit to foreclose mechanic’s lien where trial court denied foreclosure of lien but awarded plaintiff $200 and also awarded $1000 in attorney fees to defendant as “prevailing party” and on day of trial defendant paid into court sum of $200 for “extra” work, defendant was prevailing party entitled to recover costs under ORS 20.180, including attorney fees as provided by this section. Cloyd v. McPherson, 283 Or 137, 582 P2d 423 (1978)

Where third-party defendant stipulated that it was responsible for any damages defendant might be awarded for unmerchantable pipe, attorney fees awarded to defendant under lien foreclosure statute were properly transferred to third-party defendant when it failed to object to award of attorney fees on counterclaim and conceded its primary liability for defect which gave rise to counterclaim. Davison v. Parker, 50 Or App 129, 622 P2d 1113 (1981), Sup Ct review denied

Where notice of filing of lien was given by regular mail instead of by registered or certified mail and defendant admitted receipt of notice, there was substantial compliance with statutory notice requirements and denial of attorney fees and costs was improper. Laro Lumber Company v. Patrick, 52 Or App 1035, 630 P2d 400 (1981)

Where plaintiffs recovered $180 more than total of defendant’s tender and successful counterclaim, plaintiff was prevailing party, but since plaintiffs’ foreclosure suit failed they were not entitled to attorney fees under this section. King v. Suniga, 54 Or App 267, 634 P2d 812 (1981)

Where plaintiff voluntarily dismissed construction lien foreclosure action pursuant to ORCP 54A as to some defendants, those defendants could recover costs and attorney fees pursuant to this section. Precision Roof Trusses, Inc. v. Devitt, 59 Or App 4, 650 P2d 152 (1982)

Where defendants did not object to plaintiff’s failure to give notice required by ORS 87.039, they could not complain of failure to give statutory notice. Minter-Wilson Drilling Co. v. Richins, 60 Or App 702, 655 P2d 1060 (1982), Sup Ct review denied

Bank that successfully moved to dismiss claim by construction lienor to foreclose its lien was not entitled to attorney fees where court found that bank’s trust deed was prior to construction lien and not that construction lien was invalid. Bones Construction Co. v. En Stone I, Ltd., 89 Or App 530, 749 P2d 1217 (1988)

Where arbitrator refused to award attorney fees and reservation of rights clause made arbitration nonexclusive remedy, court could award attorney fees incurred in arbitration. ASB Construction v. Bateman, 124 Or App 638, 863 P2d 516 (1993)

Where contract provides that contractual remedies are in addition to remedies at law, court may include attorney fees incurred through contractual remedies as part of reasonable amount of attorney fees at trial. Westwood Construction Company v. Hallmark Inns & Resorts, Inc., 182 Or App 624, 50 P3d 238 (2002), Sup Ct review denied

LAW REVIEW CITATIONS: 9 WLJ 361 (1973)

87.070

NOTES OF DECISIONS

Claim for extra transportation charges for “dry runs” which were made at request of defendant after parties had entered into contract was not lienable item, as it was not part of parties’ contract. King v. Suniga, 54 Or App 267, 634 P2d 812 (1981)

Value of subcontractor lien is limited to amount due to subcontractor under subcontract. L.H. Morris Electric, Inc. v. Hyundai Semiconductor America, Inc., 203 Or App 54, 125 P3d 1 (2005), Sup Ct review denied

87.078

NOTES OF DECISIONS

Where person obtaining bond fails to give notice of bond filing to lien claimant, lien claimant’s remedy remains exclusively against property subject to lien. Tualatin Valley Builders Supply, Inc. v. TMT Homes of Oregon, Inc., 179 Or App 575, 41 P3d 429 (2002)

87.083

NOTES OF DECISIONS

Surety on release of lien bond need not be made party to underlying action to foreclose lien against bond. Valencich v. TMT Homes of Oregon, Inc., 193 Or App 47, 88 P3d 300 (2004)

87.093

NOTES OF DECISIONS

Location of structure on residential lot does not control whether contract is for residential construction or improvement. Calapooia Pole Structures, Inc. v. Moulder, 128 Or App 190, 875 P2d 495 (1994)

87.152

NOTES OF DECISIONS

Where materials and labor involved in installation of oil cooler assembly were not provided at request of owner, repair shop did not establish right to possessory lien under this section. United Engine Parts v. Ried, 283 Or 421, 584 P2d 275 (1978)

87.162

NOTES OF DECISIONS

Rented furniture brought on premises by tenant was not “owned by tenant” within meaning of this section, and thus landlord’s sale of such furniture under alleged landlord’s lien constituted conversion of property of lessor of the furniture. Chapman Bros. v. Miles-Hiatt Investments, 282 Or 643, 580 P2d 540 (1978)

Plaintiff’s security interest prevailed over landlord’s lien. Briggs v. Thompson, 287 Or 223, 598 P2d 296 (1979)

87.166

NOTES OF DECISIONS

Even though defendants did not comply with 20-day requirement when they took possession of plaintiff’s chattels, court could find on record that defendants’ acts did not rise to level of conversion. Jordan v. Wilhelm, 95 Or App 528, 770 P2d 74 (1989), Sup Ct review denied

87.222

NOTES OF DECISIONS

“Another” person who obtains timber refers to third-party harvester of standing timber, not to purchaser of timber felled and delivered by seller’s agent. Olcott v. Rogge Wood Products, Inc., 146 Or App 264, 932 P2d 1204 (1997)

87.226

NOTES OF DECISIONS

Whether there has been substantial compliance with statutory requirement depends on degree of noncompliance, underlying policy of requirement and prejudice that property owner or third party may have suffered as result of noncompliance. McGregor Co. v. Heritage, 291 Or 420, 631 P2d 1355 (1981)

Plaintiff’s agricultural liens were not invalid as matter of law because nonlienable security described in lien notice was segregable from lienable security without extrinsic evidence and item containing both lienable and nonlienable items could be disregarded. Hitchman v. Burkey, 95 Or App 508, 769 P2d 799 (1989), Sup Ct review denied

87.236

NOTES OF DECISIONS

Agricultural services lien did not extend to proceeds of sale of potato crop where there was no claim of substantial compliance with conditions imposed by this section. McGregor Co. v. Heritage, 291 Or 420, 631 P2d 1355 (1981)

87.242

NOTES OF DECISIONS

Absent showing of prejudice, substantial compliance, in good faith, with requirements of this section is sufficient. McGregor v. Heritage, 49 Or App 489, 620 P2d 488 (1980), aff’d as modified291 Or 420, 631 P2d 1355 (1981)

87.332

NOTES OF DECISIONS

Cases that interpret former ORS 87.675 are not necessarily applicable in interpreting this section because this section is not merely rewriting former section. C&V, Inc. v. DAW Forest Products Co., 85 Or App 58, 735 P2d 1244 (1987)

Notice given by filing lien with Secretary of State pursuant to ORS 87.242 is sufficient to sustain action against party not receiving direct notice. Green Valley Industries, Inc. v. Keech, 120 Or App 596, 853 P2d 318 (1993)

87.352

NOTES OF DECISIONS

Rock crushing operation which, by terms of agreements between parties, produced primary product of mine and therefore was essential to mine’s operation constituted “working or operation of a mine” under this section. O.O., Inc. v. Cape Mountain Rock Products, 77 Or App 159, 712 P2d 159 (1985)

87.358

LAW REVIEW CITATIONS: 69 OLR 849 (1990)

87.430 to 87.490

LAW REVIEW CITATIONS: 27 WLR 891 (1991)

87.430

NOTES OF DECISIONS

This section did not authorize attorney to endorse client’s name to check made jointly to attorney and client. In re Boothe, 303 Or 643, 740 P2d 785 (1987)

Fees secured by payment of retainer prior to filing of bankruptcy petition are available to satisfy attorney’s claim for services rendered following filing of petition. In re Century Cleaning Services, Inc., 202 B.R. 149 (Bkrtcy. D. Or. 1996)

Attorney’s lien becomes effective upon possession of client’s property or money. In re Century Cleaning Services, Inc., 215 B.R. 18 (9th Cir. BAP 1997)

Attorney for chapter 7 debtor may be compensated for post-petition work based on unavoided prepetition secured lien. In re Century Cleaning Services, Inc., 215 B.R. 18 (9th Cir. BAP 1997)

LAW REVIEW CITATIONS: 27 WLR 891 (1991)

87.440

LAW REVIEW CITATIONS: 27 WLR 891 (1991)

87.445 to 87.480

LAW REVIEW CITATIONS: 27 WLR 891 (1991)

87.445

NOTES OF DECISIONS

Where there was no evidence in record that clients expected to be accountable for fees of attorney associated with lead counsel and agreement was that lead counsel would pay associated attorneys, lien for reasonable value of associate’s services as measured by quantum meruit did not arise under this section. Hohn v. Oregon Physicians’ Service, 786 F2d 1353 (1985)

Payment of settlement amount by defendant to plaintiff does not excuse defendant from liability for attorney’s lien by plaintiff’s attorney. Potter v. Schlesser Co., Inc., 335 Or 209, 63 P3d 1172 (2003)

Lien is charge on action, suit or proceeding, not on proceeds derived from action, suit or proceeding. Pereira v. Thompson, 230 Or App 640, 217 P3d 236 (2009)

87.475

NOTES OF DECISIONS

Liability insurer repayment to other insurer for amount of Personal Injury Protection payment advanced by other insurer is reduction in judgment amount having priority over attorney lien on judgment. Willhite v. Biff’s Seafood Restaurant, Inc., 124 Or App 360, 862 P2d 580 (1993)

87.485

NOTES OF DECISIONS

Interpleader action is not “suit to foreclose” attorney’s lien for purposes of allowing attorney fees under this section. Rockwood Water Dist. v. Steve Smith Contracting, 80 Or App 136, 720 P2d 1332 (1986), Sup Ct review denied

87.490

NOTES OF DECISIONS

Attorney’s lien is superior to garnishment based on money judgment because money judgment is not “personal property” for purposes of that exception of this section to superiority of attorneys’ liens. Rockwood Water Dist. v. Steve Smith Contracting, 80 Or App 136, 720 P2d 1332 (1986), Sup Ct review denied

This section does not give attorney’s lien priority over judgment debtor’s right of setoff. Ketcham v. Selles, 96 Or App 121, 772 P2d 419 (1989), Sup Ct review denied

87.501

NOTES OF DECISIONS

Attorney fees incurred to collect lien may not be included in lien amount as administrative cost of “care.” King City Rehab, LLC v. Clackamas County, 214 Or App 333, 164 P3d 1190 (2007)

87.539

NOTES OF DECISIONS

Tender of amount claimed in notice of lien is sufficient to trigger obligation to discharge lien. King City Rehab, LLC v. Clackamas County, 214 Or App 333, 164 P3d 1190 (2007)

87.565

NOTES OF DECISIONS

Time requirement for filing notice of lien under this section is not jurisdictional, so as to render a lien void for failure to comply with such time requirement. Rogue Valley Memorial Hosp. v. Salem Ins. Agency, 265 Or 603, 510 P2d 845 (1973)

87.585

LAW REVIEW CITATIONS: 27 WLR 562 (1991)

87.855

NOTES OF DECISIONS

The benefit plan lien extends only to an employer’s earnings or property owned by him which is used in the operation of his business and not to real property in which an employer has no ownership. Pio v. ADCCO, Love’s Enterprises, Inc./Kent, 267 Or 540, 517 P2d 1189 (1974)