Property Rights

ORS 105.161
Service and enforcement of writ of execution and eviction trespass notice


(1)

Following issuance of the writ of execution of judgment of restitution and payment of any fees required by the sheriff, the sheriff shall immediately enforce and serve the writ upon the defendant, along with the eviction trespass notice, as follows:

(a)

The sheriff shall mail a copy of the writ and the eviction trespass notice by first class mail to the defendant at the premises;

(b)

The sheriff shall serve the writ and the eviction trespass notice at the premises by personal delivery to the defendant or, if the defendant is not available for service, by attaching the writ and notice in a secure manner to the main entrance to that portion of the premises of which the defendant has possession;

(c)

Immediately following the service of the writ and the eviction trespass notice, the sheriff shall return possession of the premises to the plaintiff by removing the defendant or any other person subject to the judgment; and

(d)

Following the sheriff’s removal of the defendant and return of possession of the premises to the plaintiff, the plaintiff shall be responsible for removing, storing and disposing of any personal property left by the defendant on the premises, as provided by ORS 105.165 (Alternative method of removing, storing and disposing of tenant’s personal property).

(2)

Following issuance of the writ, at the plaintiff’s request, the sheriff shall delay enforcement and service of the writ.

(3)

Any writ not enforced and served within 30 days following issuance expires and becomes unenforceable unless the court extends the operation of the writ before the writ expires based on a showing of good cause by the sheriff. If the court extends the operation of a writ under this subsection, the sheriff shall promptly notify the plaintiff of the extension.

(4)

A judgment may not be enforced if the parties have entered a new rental agreement or if the plaintiff has accepted rent for a period of occupancy beginning after the judgment was entered. [2001 c.596 §21 (105.151 (Enforcement of judgment of restitution), 105.152 (Form of notice of restitution for judgment entered under ORS 105.146), 105.153 (Form of notice of restitution for judgment not entered under ORS 105.146), 105.156 (Form of writ of execution for judgment of restitution), 105.157 (Form of eviction trespass notice), 105.158 (Service of notice of restitution), 105.159 (Computation of time before plaintiff may request writ of execution) and 105.161 (Service and enforcement of writ of execution and eviction trespass notice) enacted in lieu of 105.154); 2003 c.378 §31; 2011 c.366 §1]

Notes of Decisions

Where tenant's filing of supersedeas undertaking on appeal to stay judgment of forcible entry and detainer forces unwanted occupancy of landlord's premises, and landlord's receipt of payment before outcome of appeal would cause forcible entry and detainer judgment to become unenforceable, this statute does not govern. This statute must be construed together with ORS 19.335 to avoid prejudice to either party and should not be construed to require delay in payment of value of tenant's holdover occupancy until end of appeal, nor should it mean that landlord's receipt of payments should cause landlord to forfeit landlord's recovery of premises. Willamette Landing Apartments v. Burnett, 282 Or App 814, 387 P3d 501 (2016)

This section, when read with ORS 19.335, allows tenant to remain in possession of property, despite landlord's wishes and contrary to forcible entry and detainer judgment, in exchange for immediate undertaking to assure payment of value of unwanted use and occupancy of property during appeal regardless of outcome of appeal. Willamette Landing Apartments v. Burnett, 282 Or App 814, 387 P3d 501 (2016)

§§ 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