Property Rights

ORS 105.137
Effect of failure of party to appear

  • attorney fees
  • judgment of dismissal
  • scheduling of trial
  • unrepresented defendant


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

(1)

If the plaintiff appears and the defendant fails to appear at the first appearance, a default judgment shall be entered in favor of the plaintiff for possession of the premises and costs and disbursements.

(2)

If the defendant appears and the plaintiff fails to appear at the first appearance, a default judgment shall be entered in favor of the defendant dismissing the plaintiff’s complaint and awarding costs and disbursements.

(3)

An attorney at law shall be entitled to appear on behalf of any party, but attorney fees may not be awarded to the plaintiff if the defendant does not contest the action.

(4)

If the plaintiff dismisses the action before the first appearance, a judgment of dismissal shall be entered in favor of the defendant dismissing the plaintiff’s complaint and awarding costs and disbursements. The defendant may not recover attorney fees for prejudgment legal services provided after the delivery of written notice of the dismissal by the plaintiff to the defendant, or to an attorney for the defendant, in the manner provided under ORS 90.155 (Service or delivery of written notice).

(5)

The plaintiff or an agent of the plaintiff may obtain a continuance of the action for as long as the plaintiff or the agent of the plaintiff deems necessary to obtain the services of an attorney at law.

(6)

If both parties appear in court on the date contained in the summons, the court shall set the matter for trial as soon as practicable, unless the court is advised by the parties that the matter has been settled. The trial shall be scheduled no later than 15 days from the date of such appearance. If the matter is not tried within the 15-day period, and the delay in trial is not attributable to the landlord, the court shall order the defendant to pay rent that is accruing into court, provided the court finds after hearing that entry of such an order is just and equitable.

(7)

(a) The court shall permit an unrepresented defendant to proceed to trial by directing the defendant to file an answer in writing on a form which shall be available from the court clerk, and to serve a copy upon the plaintiff on the same day as first appearance.

(b)

The answer shall be in substantially the following form:

IN THE _________ COURT FOR
THE COUNTY OF ____________
(Landlord), )
)
Plaintiff(s), )
)
vs. ) No.___
)
(Tenant), )
)
Defendant(s). )
I (we) deny that the plaintiff(s) is (are) entitled to possession because:
__The landlord did not make repairs.
List any repair problems: ________
________________________
________________________
__The landlord is attempting to evict me (us) because of my (our) complaints (or the eviction is otherwise retaliatory).
__The landlord is attempting to evict me because of my status as a victim of domestic violence, sexual assault or stalking.
__The eviction notice is wrong.
__List any other defenses: _________
________________________
________________________
________________________
________________________
I (we) may be entitled as the prevailing party to recover attorney fees from plaintiff(s) if I (we) obtain legal services to defend this action pursuant to ORS 90.255 (Attorney fees).
I (we) ask that the plaintiff(s) not be awarded possession of the premises and that I (we) be awarded my (our) costs and disbursements and attorney fees, if applicable, or a prevailing party fee.
________ ______________
Date Signature of defendant(s)

(8)

If an unrepresented defendant files an answer as provided in subsection (7) of this section, the answer may not limit the defenses available to the defendant at trial under ORS chapter 90. If such a defendant seeks to assert at trial a defense not fairly raised by the answer, the plaintiff shall be entitled to a reasonable continuance for the purposes of preparing to meet the defense. [1975 c.256 §13; 1979 c.765 §5; 1979 c.854 §3; 1981 c.753 §12; 1989 c.506 §19; 1997 c.577 §34; 2005 c.391 §33; 2007 c.508 §14]

Notes of Decisions

This section permits representation of landlord by attorney if defendant appears, whether defendant appears by attorney or pro se. Freitag v. Wagner, 34 Or App 1035, 580 P2d 217 (1978)

§§ 105.125 to 105.160

Atty. Gen. Opinions

Conditions under which an attorney may appear, (1976) Vol 38, p 184

Law Review Citations

16 WLR 271 (1979)

§§ 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