Chapter § 64.7 PROCEDURAL CONSIDERATIONS

• Jurisdiction: Oregon

§ 64.7 PROCEDURAL CONSIDERATIONS

§ 64.7-1 Res Judicata

Anyone considering any litigation concerning real property where waste may have occurred should be aware of the decision in Henderson v. Morey, 241 Or 164, 405 P2d 359 (1965). This case suggests that unless the claim for waste is raised in the action concerning the real property, it will generally be barred under the doctrine of res judicata. See Henderson, 241 Or at 172.

§ 64.7-2 Statute of Limitations

Except for certain statutory exceptions, the statute of limitations for an action for waste is six years. ORS 12.080(3).

Landlord and tenant disputes under a rental agreement concerning a dwelling unit are subject to a one-year statute of limitations under ORS 12.125. However, a claim for waste under the Residential Landlord and Tenant Act is not subject to the one-year statute of limitations, but is subject to the six-year statute of limitations for torts in ORS 12.080(3). Waldner v. Stephens, 345 Or 526, 542-43, 200 P3d 556 (2008); see § 64.4-1.

§ 64.7-3 Damages Ancillary to Other Actions

Damages for waste may be recovered in an action whose primary purpose is to foreclose a security interest. Henderson v. Morey, 241 Or 164, 405 P2d 359 (1965). It may also be that damages for waste are recoverable in an action for restitution. Lytle v. Payette-Oregon Slope Irr. Dist., 175 Or 276, 152 P2d 934 (1944). Finally, assuming proper joinder of claims, it seems appropriate to include a claim for waste in an action for trespass, ejectment, partition, and statutory actions to obtain possession from a debtor after the statutory period of redemption. Richard R. Powell, 5 Real Property § 641, at 56-31 (1992) (citation not verified by publisher).

It is also possible to join tort claims, such as waste, along with personal injury claims and claims under the Residential Landlord and Tenant Act. See Waldner v....