REAL ESTATE DISPUTES CONTENTS 1 Remedies of Purchaser for Breach of a Land Sale Contract (1993 ed & 2002 supp)... Charles R. Markley 2 Reformation of Contracts (1993 ed & 2002 supp)... Peter Livingston 3 Residential Landlord-Tenant Disputes ()... Paul B. Heatherman Kevin J. McCarty 4 Ejectment (1993 ed)... Fred B. Miller (2002 supp)... Gary G. Linkous 5 Suits to Quiet Title (1993 ed & 2002 supp)... Patrick L. Hadlock 6 Suits for Partition (1993 ed)... Christopher M. Walters (2002 supp)... Phillip E. Joseph 7 Adverse Possession and Prescription (1993 ed)... Tracy J. White (2002 supp)... Andrea L. Bushnell 8 Eminent Domain (1993 ed)... Richard C. Bemis (2002 supp)... D. Joe Willis Jill S. Gelineau Karen K. Law Jeffrey R. Jones 9 Boundary Line Disputes; Encroachments (1993 ed)... Theodore Herzog (2002 supp)... Edwin C. Perry 10 Waste and Injuries to Land (1993 ed)... Harold D. Gillis (2002 supp)... Alexandra E. Sosnkowski 2002 Rev
11 Judgments, Execution, and Exemptions (1993 ed)...leslie M. Roberts (2002 supp)...robert R. Griffith Christine R. Tracey 12 Sellers Liability (1993 ed & 2002 supp)... Gregory R. Mowe (1993 ed)... Kelly Knivila 13 Commercial Lease Disputes and Remedies ()... James M. Finn Table of Forms Table of Statutes and Rules Table of Cases Subject Index 2002 Rev
3 PAUL B. HEATHERMAN* KEVIN J. MCCARTY RESIDENTIAL LANDLORD-TENANT DISPUTES I. INTRODUCTION A. ( 3.1) Scope of Chapter B. ( 3.2) Coverage of the Oregon Residential Landlord and Tenant Act C. ( 3.3) Exclusions D. ( 3.4) Tenancies Subject to ORLTA E. ( 3.5) Commercial and Other Tenancies II. EVALUATION OF REMEDIES A. ( 3.6) Forcible Entry and Detainer Actions B. ( 3.7) Actions for Damages C. ( 3.8) Miscellaneous Actions PAUL B. HEATHERMAN, B.S., Humboldt State University (1985); J.D., Willamette University (1993); member of the Oregon State Bar since 1993; partner, Babb Heatherman LLP, Bend. KEVIN J. MCCARTY, B.S., J.D., Willamette University (1986, 1989); member of the Oregon State Bar since 1989; sole practitioner, Bend. *The authors thank the Honorable Michael Marcus for his accomplishments with the original version of this chapter. The case citations in this chapter were checked for overrulings and reversals through March 2002. The ORS citations were checked through 2001. 3-1
III. FORCIBLE ENTRY AND DETAINER A. ( 3.9) Nature and Purpose B. ( 3.10) Jurisdiction C. ( 3.11) Venue D. Notice Preceding an FED Action 1. ( 3.12) Notice in General 2. ( 3.13) Service of Notice in General 3. ( 3.14) Notice of Termination of Periodic Tenancy Without Cause E. Termination for Nonpayment of Rent 1. ( 3.15) Residential Tenancies 2. ( 3.16) Nonresidential Tenancies F. ( 3.17) Termination of Residential Tenancy for Personal Injury, Property Damage, or Outrageous Conduct G. ( 3.18) Termination of Residential Tenancy for Unlawful Occupancy H. Termination for Cause 1. ( 3.19) Residential Tenancies 2. ( 3.20) Nonresidential Tenancies I. Pleadings in FED Actions 1. ( 3.21) Complaint 2. ( 3.22) Joinder of FED with Action for Rent 3. ( 3.23) Answer J. Commencement of Action and Trial 1. ( 3.24) Filing Fees 2. ( 3.25) Service of Process 3. ( 3.26) Representation 4. ( 3.27) First Appearance 5. ( 3.28) Continuance 6. ( 3.29) Trial K. General Defenses to FED Actions 1. ( 3.30) Defenses Available in Residential and Nonresidential FED Actions a. ( 3.31) Discrimination b. ( 3.32) Prepaid Rent c. ( 3.33) Defective Notice 3-2
d. ( 3.34) Defective Service of Notice e. ( 3.35) Waiver f. ( 3.36) New Tenancy g. ( 3.37) Equitable Defenses h. ( 3.38) Terms of the Rental Agreement 2. ( 3.39) General Defenses Available in Residential FED Actions a. ( 3.40) Retaliatory Eviction b. ( 3.41) Federal Law c. ( 3.42) Good Faith L. ( 3.43) Specific Defenses in Nonresidential FED Actions 1. ( 3.44) Defenses to Nonresidential Evictions Without Notice 2. ( 3.45) Defenses to Nonresidential Evictions Without Cause 3. ( 3.46) Defenses to Nonresidential Evictions for Nonpayment of Rent 4. ( 3.47) Defenses to Nonresidential Evictions for Cause M. ( 3.48) Specific Defenses and Counterclaims in Residential FED Actions 1. ( 3.49) Residential Evictions Without Notice 2. ( 3.50) Residential Evictions Without Cause 3. ( 3.51) Residential Evictions for Nonpayment of Rent 4. ( 3.52) Residential Evictions for Personal Injury, Property Damage, or Outrageous Conduct 5. ( 3.53) Residential Evictions for Unlawful Occupancy 6. ( 3.54) Residential Evictions for Cause 7. ( 3.55) Residential Evictions for Pet Violations N. ( 3.56) Counterclaims, Recoupments, and Setoffs O. ( 3.57) Rent Withholding and Redemption 3-3
IV. ( 3.58) ACTIONS OTHER THAN EVICTIONS UNDER ORLTA A. Actions by Landlords 1. ( 3.59) Action for Dishonored Check 2. ( 3.60) Action for Unpaid Rent While Tenant Is in Possession 3. ( 3.61) Action for Possession, Rent, and Damages After Termination of Rental Agreement B. ( 3.62) Actions by Tenants V. ATTORNEY FEES A. ( 3.63) Residential Landlord-Tenant Actions B. ( 3.64) Nonresidential Landlord-Tenant Actions VI. VII. VIII. EXECUTION OF JUDGMENT A. ( 3.65) Execution by the Sheriff B. ( 3.66) Abandoned Property Remedies REVIEW A. ( 3.67) Undertaking on Appeal B. ( 3.68) Writ of Review C. ( 3.69) Mootness MANUFACTURED HOMES A. ( 3.70) Definitions B. ( 3.71) Legal Distinctions to Other Residential Tenancies I. INTRODUCTION A. ( 3.1) Scope of Chapter This chapter discusses the law relating to disputes between landlords and tenants in both residential and commercial tenancies. The law governing residential landlords and tenants is set forth in ORS chapter 90, the Residential Landlord and Tenant Act (ORLTA) (see ORS 90.105). This ORS chapter was heavily amended in 1999, so use 3-4
Residential Landlord-Tenant Disputes / 3.3 caution when reading older cases that refer to these statutes. The most common landlord-tenant action is an action for forcible entry and detainer ( FED action ), which is governed by ORS 105.105 105.165 and is discussed at length in 3.9 3.57, infra. NOTE: The words nonresidential and commercial are used interchangeably in this chapter. This chapter cites frequently to the Uniform Residential Landlord and Tenant Act, promulgated in 1972 by the National Conference of Commissioners on Uniform State Laws. See www.law.upenn.edu/bll/ulc/fnact99/1970s/urlta72.htm. This chapter is not intended as an in-depth analysis of mobile (manufactured) home tenancies to which ORS 90.505 90.875 apply. See also chapter 13, infra, which discusses commercial lease disputes and remedies. B. ( 3.2) Coverage of the Oregon Residential Landlord and Tenant Act In many situations, ORLTA prescribes a different result than would occur in tenancies not covered by ORLTA. For example, the commonlaw principle of waiver as it relates to accepting late rent is riddled with several fact-specific exceptions under ORS 90.415. It is therefore important to be familiar with the scope of ORLTA s application. Generally, the provisions of ORLTA apply to persons entitled under an oral or a written rental agreement to occupy a structure or a portion of a structure used as a home, residence, or sleeping place by one person who maintains a household, or by two or more persons who maintain a common household. ORS 90.100(8). A roomer under ORS 90.100(33) need not occupy a dwelling or room to the exclusion of others. Torbeck v. Chamberlain, 138 Or App 446, 451 452, 910 P2d 389 (1996). For the manufactured home and floating home provisions of ORLTA, see 3.70, infra. C. ( 3.3) Exclusions The following types of living situations are excluded from ORLTA unless created to avoid the application of ORLTA: (1) Residence at a public or private institution if the residence is incidental to detention, or to medical, geriatric, educational, counseling, religious, or similar service. However, ORLTA covers residence in offcampus nondormitory housing. ORS 90.110(1). 3-5
3.3 / Residential Landlord-Tenant Disputes (2) Occupancy under a contract of sale if the occupant is the purchaser or a person who succeeds to the interest of the purchaser. ORS 90.110(2). Thus, ORLTA applies to occupancy under a leaseoption agreement before the option is exercised because a lease-option agreement is generally considered to be a residential rental agreement unless and until the option to purchase is exercised. See Rockwell v. Nelson, 157 Or App 269, 274, 970 P2d 666 (1998), rev. denied, 328 Or 365 (1999). Note that a contract purchaser s tenant does not succeed to the purchaser s interest, and is not excluded from ORLTA. In that situation, both the seller and the buyer are considered landlords within the meaning of ORS 90.100(19) if the seller retains title. (3) Occupancy by a member of a fraternal or social organization in the portion of the structure operated for the benefit of the organization. ORS 90.110(3). (4) Transient occupancy in a hotel or motel. ORS 90.110(4). This exclusion is strictly constrained by ORS 90.100(41), which ensures that ORLTA applies to residential hotel and motel occupancies. Tax and licensing designations are not dispositive. See City of Portland v. Carriage Inn, 67 Or App 44, 676 P2d 943 (1984). The exclusion is available only if (a) rent is charged daily and is not collected more than six days in advance, (b) maid and linen service is offered at least every two days, and (c) occupancy does not exceed 30 days. ORS 90.100(41). (5) Occupancy of an employee of a landlord whose right to occupancy is conditional on employment in and about the premises. ORS 90.110(7). Note, however, that ORS 91.120 requires 24 hours written notice (or longer if so provided by an employment agreement) for eviction of such an employee. If the employee does not move after notice, the landlord or the employer may evict only through the FED process. (6) Occupancy by a condominium unit owner or a holder of a proprietary lease in a cooperative. ORS 90.110(8). (7) Occupancy under a rental agreement covering premises used by the occupant primarily for agricultural purposes. ORS 90.110(9). This provision should not exclude farmworker housing when the worker s duties are not performed on the premises as defined in ORS 90.100(28). See also 36 Op Att y Gen 332 (Or 1973). (8) Additional exclusions include vacation occupancies (ORS 90.100(42)) and squatters (ORS 90.100(36)). 3-6