Property Rights

ORS 105.115
Causes of unlawful holding by force

  • action for return of possession


(1)

Except as provided by subsections (2) and (3) of this section, the following are causes of unlawful holding by force within the meaning of ORS 105.110 (Action for forcible entry or wrongful detainer), 105.123 (Complaint) and 105.126 (Form of complaint if ORS chapter 90 does not apply):

(a)

When the tenant or person in possession of any premises fails or refuses to pay rent within 10 days after the rent is due under the lease or agreement under which the tenant or person in possession holds, or to deliver possession of the premises after being in default on payment of rent for 10 days.

(b)

When the lease by its terms has expired and has not been renewed, or when the tenant or person in possession is holding from month to month, or year to year, and remains in possession after notice to quit as provided in ORS 105.120 (Notice necessary to maintain action in certain cases), or is holding contrary to any condition or covenant of the lease or is holding possession without any written lease or agreement.

(c)

When the owner or possessor of a recreational vehicle that was placed or driven onto property without the prior consent of the property owner, operator or tenant fails to remove the recreational vehicle. The property owner or operator is not required to serve a notice to quit the property before commencing an action under ORS 105.126 (Form of complaint if ORS chapter 90 does not apply) against a recreational vehicle owner or possessor holding property by force as described in this paragraph.

(d)

When the person in possession of a premises remains in possession after the time when a purchaser of the premises is entitled to possession in accordance with the provisions of ORS 18.946 (Possession after sale) or 86.782 (Sale of property).

(e)

When the person in possession of a premises remains in possession after the time when a deed given in lieu of foreclosure entitles the transferee named in the deed to possession of the premises.

(f)

When the person in possession of a premises remains in possession after the time when a seller is entitled to possession in accordance with the provisions of ORS 93.930 (Recording affidavit after forfeiture) (2)(c) or pursuant to a judgment of strict foreclosure of a recorded contract for transfer or conveyance of an interest in real property.

(g)

When the person in possession of a premises remains in possession after the expiration of a valid notice terminating the person’s right to occupy the premises pursuant to ORS 91.120 (Eviction of employee), 91.122 (Occupancy of dwelling unit by employee of resident of dwelling unit) or 91.130 (Eviction of purchaser or seller of property).

(2)

In the case of a dwelling unit to which ORS chapter 90 applies:

(a)

The following are causes of unlawful holding by force within the meaning of ORS 105.110 (Action for forcible entry or wrongful detainer) and 105.123 (Complaint):

(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 (Termination of tenancy for failure to pay rent).

(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.

(b)

A 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 this subsection until after the expiration of a rental agreement for a fixed term tenancy or after the expiration of the time period provided in a notice terminating the tenancy.

(3)

In an action under subsection (2) of this section, ORS chapter 90 shall be applied to determine the rights of the parties, including:

(a)

Whether and in what amount rent is due;

(b)

Whether a tenancy or rental agreement has been validly terminated; and

(c)

Whether the tenant is entitled to remedies for retaliatory conduct by the landlord as provided by ORS 90.385 (Retaliatory conduct by landlord) and 90.765 (Prohibitions on retaliatory conduct by landlord). [Amended by 1973 c.559 §34; 1977 c.365 §1; 1981 c.753 §5; 1995 c.559 §45; 2001 c.596 §47; 2003 c.378 §19; 2005 c.391 §28; 2007 c.653 §1; 2009 c.569 §2; 2009 c.638 §1]

Notes of Decisions

In an action based upon default in payment of rent, upon acceptance by plaintiff of the payment upon which the action is based, the lease is "reinstated" subject to termination of subsequent defaults. Reeves v. Baker, 270 Or 837, 530 P2d 30 (1974)

When tenant withheld rent in good faith based on alleged habitability violations, landlord brought FED action, and tenant counterclaimed and paid rent into court, tenant was entitled to retain possession even though landlord prevailed on habitability counterclaims and action for rent. Amatisto v. Paz, 82 Or App 341, 728 P2d 42 (1986)

§§ 105.105 to 105.165

Notes of Decisions

Provisions for early trial, posting of security for accruing rent during continuance and restriction of triable issues do not violate Due Process or Equal Protection clauses of federal constitution. Lindsey v. Normet, 405 US 56, 92 S Ct 862, 31 L Ed 36 (1972)

Proceedings under the Oregon forcible entry and detainer law, including proceedings against nonresident defendants, are not subject to the general statutes relating to service of process. Lexton-Ancira, Inc. v. Kay, 269 Or 1, 522 P2d 875 (1974)

A forcible entry and detainer proceeding is a "local action" for choice of law purposes. Fry v. D.H. Overmyer Co., 269 Or 281, 525 P2d 140 (1974)

the Defendant Did not State Good Affirmative Defenses By Alleging

a violation of public policy forbidding a franchisor to refuse to renew a franchise except for good cause; A "retaliatory eviction" for a refusal to engage in improper business practices; and an implied agreement to renew based upon conduct and prior dealings. William C. Cornitius, Inc., v. Wheeler, 276 Or 747, 556 P2d 666 (1976)

In forcible entry and detainer action to recover possession of commercial property, claim for attorney fees could not be litigated. Grove v. The Hindquarter Corp., 45 Or App 781, 609 P2d 840 (1980)

In forcible entry and detainer action for possession of commercial premises, landlords could not recover attorney fees. Owen J. Jones & Son, Inc. v. Gospodinovic, 46 Or App 101, 610 P2d 1238 (1980)

Equitable defense may be raised in FED proceeding. Rose v. Webster, 51 Or App 293, 625 P2d 1329 (1981)

In FED action to recover commercial property, defendant cannot assert counterclaim unless counterclaim is authorized by statute. Class v. Carter, 293 Or 147, 645 P2d 536 (1982)

Law Review Citations

16 WLR 291 (1979)

Chapter 105

Atty. Gen. Opinions

Private process server in a forcible entry and detainer action, (1975) Vol 37, p 869


Source

Last accessed
Jun. 26, 2021