Chapter § 31.6 FORCIBLE-ENTRY-AND-DETAINER PROCEEDING

• Jurisdiction: Oregon

§ 31.6 FORCIBLE-ENTRY-AND-DETAINER PROCEEDING

§ 31.6-1 Nature and Purpose

The nature and purpose of a forcible-entry-and-detainer (FED) proceeding is to afford the landlord a quick and speedy method to obtain recovery of his or her property from the tenant. The statutory scheme for an FED proceeding is set forth in ORS 105.105 to 105.168. ORS 105.110 specifies that

[w]hen 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.

Oregon courts have required strict construction of laws that define the FED process. See Teresi v. Gina Belmonte Corp., 31 Or App 1231, 1235, 572 P2d 647 (1977) ("An FED action is a special statutory proceeding, summary in its nature; it is in derogation of the common law and must be strictly construed.").

§ 31.6-2 Jurisdiction

§ 31.6-2(a) Landlord-Tenant Relationship

As a condition of bringing a forcible-entry-and-detainer (FED) action in court (ORS 105.105-105.168), there must be an entry that is made with force, or there must be a landlord-tenant relationship where holding by force is deemed to occur by law. Purcell v. Edmunds, 175 Or 68, 70, 151 P2d 629 (1944); see Kerr v. Jones, 193 Or App 682, 91 P3d 828 (2004). A FED action is not a substitute for an action of trespass or ejectment. Purcell, 175 Or at 70; Bunch v. Pearson, 186 Or App 138, 62 P3d 878, rev den, 335 Or 422 (2003); see also Schroeder v. Woody, 166 Or 93, 95, 109 P2d 597 (1941) ("[A]n action of forcible entry and detainer does not lie against a vendee in possession under a contract of purchase."). But see Schmidt v. Hart, 237 Or App 412, 421, 241 P3d 329 (2010) ("[W]e conclude that the [trial] court had authority in an FED proceeding to interpret the provisions of the trust for the purpose of determining whether plaintiff [occupant] had a right to possession.").

Whether or not a tenant is holding possession by force is addressed in ORS 105.115. In the context of a residential dwelling unit, a tenant holds possession with force:

(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.

ORS 105.115(2)(a).

ORS 105.115(2)(b) specifies that the 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 [ORS 105.115(2)] until after the expiration of a rental agreement for a fixed term tenancy or after expiration of the time period provided in a notice terminating the tenancy."

§ 31.6-2(b) Alternative Ejectment Action

If there is no landlord-tenant relationship between the parties or the occupant has not entered with force under ORS 105.115(2), the property owner may seek possession by way of an action for ejectment under ORS 105.005. These proceedings can typically be resolved by way of a motion for summary judgment, as the existence (and import) of an interest in the property is usually of record and is thus a matter of law. However, if there is any disputed, genuine issue of fact related to ownership or title, that issue would need to be determined by the finder of fact at trial. See Mukai Living Trust v. Lopez, 199 Or App 341, 111 P3d 1150 (2005) (summary judgment in favor of plaintiff on ejectment claim affirmed when defendant attempted to escape the effect of the statute of frauds).

PRACTICE TIP: In an ejectment action, ORS 105.010 specifies the requirements of the complaint, and ORS 105.015 specifies what must be set forth in the answer.

§ 31.6-2(c) Venue

A forcible-entry-and-detainer proceeding must be commenced in the county in which the property is located. See ORS 105.110 ("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. . . .").

§ 31.6-3 Notice Preceding a Forcible-Entry-and-Detainer Action

§ 31.6-3(a) Notice Generally

Written notice must typically be given to the tenant before the landlord can commence a forcible-entry-and-detainer (FED) proceeding. There is an exception in the context of the expiration of a fixed-term lease that has not been renewed; in such a case, no notice is required to render the tenant's holding of possession unlawful after the lease term expires. See ORS 105.115(2)(a)(B) (cause for an FED exists "[w]hen a rental agreement by its terms has expired and has not been renewed").

If the notice fails to include required information (such as the proper amount of time to cure or vacate) or is defective as to its service, the case will likely be dismissed. Proper notice is a prerequisite to maintaining an FED action. See Lefler v. Wilson, 94 Or App 411, n 1, 765 P2d 833 (1989) (citing Federal Land Bank of Spokane v. Schelske, 87 Or App 346, 348, 742 P2d 659 (1987)). A tenant's failure to alert the landlord to a notice defect neither waives entitlement to nor creates the basis for an estoppel as to the tenant's right to receive proper notice. Guardian Management, LLC v. Zamiello, 194 Or App 524, 95 P3d 1139 (2004). But see Housing Authority of Portland v. Bahr, 25 Or App 117, 121, 548 P2d 514 (1976) (if there is "concrete evidence" of a husband and wife "communicating between themselves about what was going on," this is sufficient to draw the inference that notice served on the husband was binding on the wife despite the wife not being separately served with notice).

§ 31.6-3(b) Types of Residential Eviction Notice

§ 31.6-3(b)(1) Notice without Cause for Month-to-Month Tenancy

ORS 90.427(3) specifies in relevant part as follows:

(3) If a tenancy is a month-to-month tenancy:

(a) At any time during the tenancy, the tenant may terminate the tenancy by giving the landlord notice in writing not less than 30 days prior to the date designated in the notice for the termination of the tenancy.

(b) At any time during the first year of occupancy, the landlord may terminate the tenancy by giving the tenant notice in writing not less than 30 days prior to the date designated in the notice for the termination of the tenancy.

(c) At any time after the first year of occupancy, the landlord may terminate the tenancy by giving the tenant notice in writing not less than 60 days prior to the date designated in the notice for the termination of the tenancy.

The phrase first year of occupancy includes "all periods in which any of the tenants has resided in the dwelling unit for one year or less." ORS 90.427(1). If the tenancy is for a fixed term of at least one year and by its terms becomes a month-to-month tenancy after the fixed term, then at any time during the fixed term

the landlord or the tenant may terminate the tenancy without cause by giving the other notice in writing not less than 30 days prior to the specified ending date for the fixed term or not less than 30 days prior to the date designated in the notice for the termination of the tenancy, whichever is later.

ORS 90.427(4)(a).

ORS 90.427(4)(b) specifies that in the context of a fixed-term lease of at least one year which by its terms became a month-to-month tenancy after its expiration, "at any time during the month-to-month tenancy, the landlord may terminate the tenancy without cause only by giving the tenant notice in writing not less than 60 days prior to the date designated in the notice for the termination of the tenancy."

§ 31.6-3(b)(2) Notice for Nonpayment of Rent

ORS 90.394 regulates notices for failure to pay rent. The statute provides the landlord with the following options when seeking to terminate a tenancy for nonpayment of rent:

• Ina week-to-week tenancy, the landlord may serve the tenant with "at least 72 hours' written notice of nonpayment and the landlord's intention to terminate the rental agreement if the rent is not paid within that period." ORS 90.394(1). In this scenario, the landlord "shall give this notice no sooner than on the fifth day of the rental period, including the first day the rent is due." ORS 90.394(1).

• For any tenancy other than a week-to-week tenancy (such as a month-to-month tenancy or fixed-term lease), the landlord may deliver to the tenant "[a]t least 72 hours' written notice of nonpayment and the landlord's intention to terminate the rental agreement if the rent is not paid within that period." ORS 90.394(2)(a). In this instance, the landlord "shall give this notice no sooner than on the eighth day of the rental period, including the first day the rent is due." ORS 90.394(2)(a).

• Alternatively, in any context other than a week-to-week tenancy, the landlord may provide the tenant with a 144-hour written notice of nonpayment of rent, in which case "the landlord shall give this notice no sooner than on the fifth day of the rental period, including the first day the rent is due." ORS 90.394(2)(b).

The notice must specify the amount of rent to be paid and the date and time by which the tenant must pay the rent to cure the violation. It is not enough for the notice to simply state that rent is due "seven days from the date of this notice" or similar language; a specific deadline (referencing both date and time) must be provided in all eviction notices. See Ostlund v. Hendricks, 289 Or 543, 549, 615 P2d 327 (1980) ("Both the general month to month termination statute and the...