Property Rights

ORS 105.120
Notice necessary to maintain action in certain cases

  • waiver of notice
  • effect of advance payments of rent

(1)

As used in this section, “rent” does not include funds paid under the United States Housing Act of 1937 (42 U.S.C. 1437f).

(2)

Except as provided in subsection (3) of this section, an action for the recovery of the possession of the premises may be maintained in cases provided in ORS 105.115 (Causes of unlawful holding by force) (1)(b), when the notice to terminate the tenancy or to quit has been served upon the tenant or person in possession in the manner prescribed by ORS 91.110 (Notices to be in writing) and for the period prescribed by ORS 91.060 (Tenancy from year to year) to 91.080 (Termination when expiration of tenancy fixed by terms of lease) before the commencement of the action, unless the leasing or occupation is for the purpose of farming or agriculture, in which case the notice must be served for a period of 90 days before the commencement of the action. Any person entering into the possession of real estate under written lease as the tenant of another may, by the terms of the lease, waive the giving of any notice required by this subsection.

(3)

An action for the recovery of the possession of a dwelling unit to which ORS chapter 90 applies may be maintained in situations described in ORS 105.115 (Causes of unlawful holding by force) (2) when the notice to terminate the tenancy or to quit has been served by the tenant upon the landlord or by the landlord upon the tenant or person in possession in the manner prescribed by ORS 90.155 (Service or delivery of written notice).

(4)

Except when a tenancy involves a dwelling unit subject to ORS chapter 90, the service of a notice to quit upon a tenant or person in possession does not authorize an action to be maintained against the tenant or person in possession for the possession of premises before the expiration of any period for which the tenant or person has paid the rent of the premises in advance.

(5)

An action to recover possession of a dwelling unit subject to ORS chapter 90 may not be brought or filed against a tenant or person in possession based upon a notice under ORS 90.427 (Termination of tenancy without tenant cause) to terminate the tenancy until after the expiration of any period for which the tenant or person has paid the rent of the dwelling unit in advance, unless:

(a)

The only other money paid by the tenant was collected as a last month’s rent deposit as provided under ORS 90.300 (Security deposits); or

(b)

The only unused rent was paid by the tenant for a rental period extending beyond the termination date specified in a valid outstanding notice to terminate the tenancy and the landlord refunded the unused rent within 10 days after receipt by delivering the unused rent to the tenant in person or by first class mailing. [Amended by 1973 c.559 §35; 1981 c.753 §6; 1983 c.303 §5; 1985 c.588 §13; 1989 c.506 §18; 1993 c.369 §15; 1995 c.559 §52; 1997 c.577 §31; 1999 c.603 §35; 1999 c.676 §26; 2007 c.906 §36; 2013 c.294 §15]

Notes of Decisions

Where landlords failed to show that tenancy was terminated or notice to quit given under this section prior to commencement of FED proceeding, trial court's dismissal of action was proper. Teresi v. Gina Belmonte Corp., 31 Or App 1231, 572 P2d 6479 (1977)

Where lease extension agreement incorporated provisions of original lease, which had provided that $1800 prepaid rent was to be applied to last three months of ten-year rental period, $1800 was prepaid rent to be applied only for last three months of new rental period, and tenants did not have defense under this section against termination of lease for rental payment default. Powers v. Kirkman Laboratories, Inc., 45 Or App 1083, 610 P2d 280 (1980), Sup Ct review denied

FED action for land leased for agricultural purposes may be instituted as soon as tenants wrongfully hold over beyond fixed expiration date of lease and this section does not require 90 days' notice prior to commencement of action if tenancy is for fixed term. Federal Land Bank of Spokane v. Schelske, 87 Or App 346, 742 P2d 659 (1987)

§§ 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

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