Chapter § 61.2 EJECTMENT

• Jurisdiction: Oregon

§ 61.2 EJECTMENT

§ 61.2-1 Nature of Remedy

A civil action for ejectment under ORS 105.005 to 105.080 is a statutory remedy available for obtaining possession of real property and damages for withholding possession. These ejectment statutes date from the nineteenth century and appear intended to overcome then-deficient aspects of the common-law legal remedy of ejectment. See Hoover v. King, 43 Or 281, 283, 72 P 880 (1903). These ejectment statutes do not, however, set out the substantive grounds for possessory rights to real property. In Oregon, an ejectment plaintiff must plead and prove a legal estate in real property and a present right to possession based on other statutory sources or the common law. ORS 105.010. See McCown v. Hannah, 3 Or 302, 305 (Or Cir 1871). See also U.S. Bank Nat'l Ass'n v. Wright, 253 Or App 207, 214, 289 P3d 361 (2012) ("Unless plaintiff proves its own estate in the property, it cannot eject anyone from the property, regardless of whether those occupants have a right to possession.").

Oregon's ejectment statutes illustrate the historic legal-remedy nature of common-law ejectment. Thus, ORS 105.005(1) confines the remedy to persons having "a legal estate in real property" together with a present right to possession. Notwithstanding this "legal estate" limitation, however, Oregon decisions permit some equitable owners (such as contract buyers) to maintain ejectment actions at least against trespassers. See Feehely v. Rogers, 159 Or 361, 373-76, 80 P2d 717 (1938); Kingsley v. United Rys. Co., 66 Or 50, 54-55, 133 P 785 (1913). To avoid the technical prohibition, however, an equitable owner seeking ejectment relief should probably join its ejectment claim with an alternative claim for declaratory relief. See Rise v. Steckel, 59 Or App 675, 677, 652 P2d 364, rev den, 294 Or 212 (1982) (life tenant brought declaratory action rather than ejectment to obtain possession of real property).

Procedurally, the law-equity distinction is less important now since ORCP 2 established a single form of civil action and abolished all procedural distinctions between actions at law and suits in equity except those specifically provided for by the rules, statutes, or state constitution. The remedy-at-law heritage endures through these exceptions, however, with the preservation for ejectment actions of jury trial privileges and the preclusion of de novo review on appeal. See Webb v. Clodfelter, 205 Or App 20, 30, 132 P3d 50 (2006); Woodley v. Allstead, 49 Or App 875, 883-84, 621 P2d 612 (1980); Corson v. Williford, 44 Or App 145, 149, 605 P2d 1194 (1980); see also ORS 19.415. See the discussion of the scope of review on appeal in § 61.2-11.

Proving the legal estate, however, may necessarily involve an action to quiet title in the property. See Hoffman v. Freeman Land & Timber, LLC, 329 Or 554, 557, 994 P2d 106 (1999) (owner of property filed quiet-title action and ejectment against cattle rancher, who defended on basis of adverse possession). See also McIntyre v. Photinos, 175 Or App 478, 481, 28 P3d 1259 (2001) (neighbor sought ejectment of property owners from strip of land based on her claim of adverse possession). When a case of this type arises, it is often difficult to maintain the pure legal nature of the ejectment action due to the equitable nature of a quiet-title suit. See McIntyre, 175 Or App at 482-83.

In State v. Norris, 182 Or App 547, 549, 50 P3d 595 (2002), the State of Oregon, by and through its Division of State Lands and State Land Board (DSL), brought action against property owners of land that abutted the Columbia River. The property owners, or their predecessors, built structures over submerged and submersible lands despite the fact that ORS 274.025(1) provides that the state has title "to the submersible and submerged lands of all navigable streams and lakes in this state now existing or which may have been in existence in 1859 when the state was admitted to the Union, or at any time since admission, and which has not become vested in any person." Norris, 182 Or App at 549.

DSL brought claims for (1) ejectment, requesting a judgment ordering the property owners to remove all the structures; (2) a claim for "'injunctive relief for nuisance,'" in which DSL "asserted entitlement to a mandatory injunction requiring [the property owners] to remove all materials that overlie the state's property and to 'remove so much of that material overlying [d]efendants' own submersible property which is a nuisance'"; and (3) a claim for declaratory relief regarding the appropriate boundary line and whether the property owners were entitled to obtain a lease for the structures. Norris, 182 Or App at 550 (quoting DSL's complaint).

On appeal, the property owners argued that the trial court erred in denying their request for a jury trial because ejectment is a legal claim. Norris, 182 Or App at 551. The Oregon Court of Appeals agreed with the property owners that "a claim of ejectment states a claim at law," but stated that "the label given to a claim does not determine whether the matter is at law or in equity," and that the "nature of the relief sought is the critical factor in deciding if a matter is one at law or in equity." Norris, 182 Or App at 551-52.

The court of appeals held that "[a]ll of the relief sought here is equitable in nature and can be completely resolved in equitable proceedings," and "[t]he fact that at least a portion of DSL's claims could have been resolved in an ejectment action does not make a difference . . . because the court was able to fully resolve all of the matters before it by granting equitable relief." Norris, 182 Or App at 553. In other words, DSL's requested remedy "was complete in the sense that it sought to eliminate the existing occupation of state property and that it sought to prohibit future occupations," but that "[r]esolution of the ejectment claim would not have provided such complete relief." Norris, 182 Or App at 554. Consequently, the trial court did not err in denying the request for a jury trial.

Conversely, the court of appeals in Spears v. Dizick, 235 Or App 594, 598, 234 P3d 1037 (2010), held that a declaratory relief claim was more like an ejectment action than a quiet-title claim, and therefore reviewed on appeal as an action at law. In Spears, a grandmother conveyed an interest in land to her grandson. Thereafter, she conveyed a similar interest to her children. The children brought action against the grandson, alleging that the conveyance to the grandson was the product of undue influence. On the children's declaratory relief claim, the trial court entered judgment against the children. Spears, 235 Or App at 596.

NOTE: Spears was decided under an older version of ORS 19.415, before scope-of-review amendments took effect. See § 61.2-11.

In determining its scope of review, the court of appeals held that although the declaratory relief claim appeared to sound in quiet title, the declaratory relief claim was more akin to an action at law principally because the children were not in possession of the land and "a party who is not in possession of land may not maintain a quiet title action against a party in possession." Spears, 235 Or App at 597. Moreover, "[u]nder the circumstances of th[e] case, full relief was available to children by way of an action at law," because "[t]hrough an ejectment action, they could not only resolve title to the subject property, but also obtain possession thereof." Spears, 235 Or App at 598.

Attorneys must exercise caution when dealing with rental property. In Yeon St. Partners v. Envtl. Consulting Servs., Inc., 125 Or App 501, 865 P2d 1325 (1993), the defendant was a tenant in a commercial building that the plaintiff purchased. Before the purchase, the defendant, on the plaintiff's request, allegedly agreed to vacate the premises because the plaintiff intended to lease the space to another company. After the purchase, the defendant refused to move. The plaintiff sued for specific performance of the oral agreement to vacate and was awarded possession. On appeal, the defendant contended that the plaintiff should have asserted its legal remedy of ejectment. The Oregon Court of Appeals rejected this argument with the dictum that "[a]n action in ejectment was not available to plaintiff, because defendant had not defaulted on the lease." Yeon St. Partners, 125 Or App at 505. It is probably more accurate to say that the plaintiff's present right to possession in Yeon rested on specific enforcement of its alleged prior agreement with the defendant to take early possession, an equitable remedy. As with a seller seeking specific performance under a land sale contract, the equitable remedy may include an award of possession (see Renard v. Allen, 237 Or 406, 414-15, 391 P2d 777 (1964)), thus preempting the ejectment remedy.

PRACTICE TIP: The decision to combine an equitable remedy with a legal action under ORS 105.005 should be considered very carefully when the client seeking ejectment has a clear legal estate in the subject property and an obvious right to possession. Unless the client needs some additional equitable remedy, the lawyer using only the statutory remedy of ORS 105.005 can avoid numerous equitable defenses and the court's fashioning an undesirable remedy.

§ 61.2-2 Relationship to FED and Quiet-Title Actions

The statutory foundation for an ejectment action is "a legal estate in real property and a present right to the possession of the property." ORS 105.005(1). The successful ejectment plaintiff will ordinarily rest its claim for possession on proof of title that is superior to that of the defendant. See Spears v. Dizick, 235 Or App 594, 597, 234 P3d 1037 (2010) ("An ejectment action can resolve title to land."). Thus, a landlord could file for ejectment to evict a tenant in default, as an ejectment statute specifically authorizes. See ORS 105.075. Few landlords sue for ejectment, however, because a...