Chapter § 35.3 FORCIBLE-ENTRY-AND-DETAINER ACTIONS

JurisdictionOregon

§ 35.3 FORCIBLE-ENTRY-AND-DETAINER ACTIONS

§ 35.3-1 Generally

A forcible-entry-and-detainer (FED) action is a summary proceeding brought by a lessor against a lessee to determine which party is entitled to possess the premise. The commercial-FED process is substantially similar to the residential-FED process and both differ significantly from the typical circuit court action in the following respects: (1) there are separate rules for the form of summons and complaint, (2) there are separate rules for service of process, (3) the trial will generally occur within 22 judicial days of filing the complaint, (4) the trial will only determine issues of possession, and (5) no counterclaims will be permitted except those specifically authorized by statute.

The FED action is governed by ORS 105.105 to 105.168. These statutes are strictly construed. Teresi v. Gina Belmonte Corp., 31 Or App 1231, 1235, 572 P2d 647 (1977); Schroeder v. Woody, 166 Or 93, 96, 109 P2d 597 (1941).

The FED action determines the right to possess the property only. Schroeder, 166 Or at 95 ("The proceeding in an action of forcible entry and detainer is possessory only and the remedy is purely of statutory origin."). A favorable FED judgment for the lessor results in restitution of the premises on a specified date, as well as court costs (and potentially attorney fees if permitted under the lease agreement). Anderson v. Garrison-Reed Enterprises, Inc., 66 Or App 872, 876, 676 P2d 350, rev den, 296 Or 829 (1984) ("ORCP 68 creates a procedure whereby a party to an FED action for recovery of possession of commercial property may seek an award of [attorney] fees.").

Money judgments for unpaid rent are not rendered in FED actions. To obtain a judgment for unpaid rent and other damages, the lessor must file a separate action seeking monetary damages. A separate action for unpaid rent may be brought simultaneously with the FED action. Although the two actions may be joined, joinder is not required, and the lessee should not be permitted to assert an ORCP 21 A(3) motion to dismiss based on another action pending. Smith v. Morris, 112 Or App 217, 218, 827 P2d 1370 (1992); Owen J. Jones & Son, Inc. v. Gospodinovic, 46 Or App 101, 104, 610 P2d 1238 (1980). If the lessor joins a FED action with an action seeking unpaid rent, that joinder deprives the FED action of its summary proceeding status, and the usual circuit court rules apply.

NOTE: Under Oregon law, a commercial lessee's obligation to pay rent survives the termination of the right to possession through an FED action. See Sunset Fuel & Eng'g Co. v. Compton, 97 Or App 244, 775 P2d 901, rev den, 308 Or 466 (1989). In other words, although the lessor has a general obligation to mitigate its damages (by taking reasonable measures to relet the premises), the successful FED action does not release the lessee from its contractual monetary obligations.

§ 35.3-2 Notice

In a commercial forcible-entry-and-detainer (FED) action for failure to pay rent, Oregon law does not require advance notice to the lessee. Any notice requirement for failure to pay rent before bringing the FED must be set forth in the lease agreement. If the lease agreement is silent, an FED action may be commenced without prior written notice after the lessee has failed to pay rent for at least 10 days. ORS 91.090, ORS 105.115(1)(a); Shlim v. Alimeg, Inc., 87 Or App 178, 181-82, 742 P2d 54, rev den, 304 Or 547 (1987), cert den, 487 US 1218 (1988) (ORS 91.090 does not require written notice of default before commencing FED action for nonpayment of rent); Ratoza v. Flame, Inc., 277 Or 185, 187-88, 559 P2d 1283 (1977) (ORS 91.090 automatically terminates lessee's leasehold when the 10-day grace period elapses, absent any waiver of the time provision as a result of any previous acceptances of late payments).

The 10-day period under ORS 91.090 for failure to pay rent begins running the day after the rent is due. In other words, if the lease provides that rent is due on the first day of the month, an FED for nonpayment of rent cannot be commenced until the 12th day of the month. Locus Bldg. P'ship v. Gladys Enterprises, Inc., 62 Or App 792, 796, 662 P2d 15, rev den, 295 Or 447 (1983); Loe v. Klein, 191 Or 654, 659, 233 P2d 209 (1951).

However, the 10-day grace period under ORS 91.090 only applies to rents that are fixed liquidated sums. W. Rebuilders & Tractor Parts, Inc. v. Felmley, 237 Or 191, 201, 391 P2d 383 (1964) (affirming the trial court's findings that the lessor had "no lawful basis" to evict lessor because ORS 91.090 "did not apply to the unliquidated percentage rental, and there was no provision in the lease for termination"). Later cases clarified, however, that ORS 91.090 applies to unliquidated percentage rent payments as long as the lease fixes a time when those payments are due. Ratoza v. Flame, Inc., 277 Or 185, 559 P2d 1283 (1977).

The lease agreement may shorten or lengthen the grace period for nonpayment of rent. See Washington Square, Inc. v. First Lady Beauty Salons, Inc., 290 Or 753, 760-61, 625 P2d 1311 (1981); Beri, Inc. v. LaPointe's, Inc., 66 Or App 257, 260, 673 P2d 570 (1983), rev den, 296 Or 536 (1984). The lease agreement can impose a written notice requirement that will be enforced; and when the terms of the lease differ from ORS 91.090, the lease terms control. 2606 Bldg. v. MICA OR I Inc., 334 Or 175, 182, 47 P3d 12 (2002).

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