Chapter 9: Evictions & Other Landlord Remedies

A. Forcible Entries and Detainers
B. Types of Evictions
C. Retaliation
D. The Eviction Process
E. Defending Against an Eviction

A. Forcible Entry and Detainers (FEDs)

A forcible Entry and Detainer (FED) is the legal term for an eviction. A landlord cannot evict a tenant without a legal order (FED). If a tenant does not move by the day on the notice then the landlord must file an FED at the Country Courthouse.

Note: A tenant who is unable to pay the rent, and a landlord who isn't receiving the rent, may find that a settlement is best for both parties, before or after the landlord brings the FED action. For example, a tenant with a lease may want to ask his landlord for a release from the remainder of the lease in return for agreeing to move out more quickly or sparing the landlord the time and expense of bringing an FED action.

With any eviction notice, if the tenant does not leave within the specified time, the landlord must take the tenant to court to recover possession of the premises.

B. Types of Evictions

Warning: Evictions go on the tenant's record, making it difficult to find housing later. Many landlords will not rent to people who have had an eviction within the last 5 years.

With rare exception (i.e., when a lease expires on the given date), all evictions must start with a termination notice.

Serving Notices

All written notices from one party to another may be served by personal delivery or by "first class mail" (not certified or registered mail). If a notice is served by mail, 3 days must be added before the notice will take effect.

Note: The calculation of the notice period is from the date after the date of mailing or delivering the notice. (90.160)

Nail and Mail

The only exception to the above is for 72-hour and 144-hour nonpayment of rent notices, 48-hour notice of drug and alcohol free housing violation, and most 24-hour notices.

These notices may be served by "nail and mail" if it is so specified in a written rental agreement. The new law requires that the agreement must also allow nail and mail service by the tenant to the landlord, and must describe a reasonable location for the tenant to nail and mail the notice. This means that one copy is securely attached to the tenant's front door, and another is mailed first class, in which case there is no 3-day mail extension. (90.155(4))

Eviction Without Cause: the 30-Day Notice Without Cause

The landlord may terminate a week-to-week tenancy by giving the tenant 10-days' written notice, and a month-to-month tenancy by giving at least 30-days written notice. This end occurs regardless of when the rent is due and regardless of any prepaid rent, such as "last month's rent."

If the termination date does not coincide with the day of rent payment, rent is prorated. (90.427(3)) (See All about Rent)

The landlord is not required to state the reason for the eviction. However, landlords cannot use Eviction Without Cause to discriminate or retaliate against a tenant.

Eviction for Cause: The 30-Day Notice For Cause

The landlord may serve a notice terminating the tenancy for cause when the tenant:

"materially" breaches the rental agreement;
violates the tenants' obligations in a way which "materially" affects health or safety; (See Tenant Rights and Responsibilities)
materially fails to comply with the terms of recovery in drug and alcohol free housing (only if the tenant has lived there for more than 2 years);
fails to pay late charges; or
nonpayment of a utility or service charge.

The notice must specify how the tenant has violated the lease or obligations, and must state that the tenancy will end on a date which is at least 30 days after the receipt of the notice.

The tenant has 14 days to fix the problem if it can be fixed by repairs, by paying damages or late charges, by changing conduct, or otherwise. This deadline must be stated in the notice. A timely remedy will prevent the landlord from evicting on that notice.

Recurring Problem

If basically the same problem recurs within 6 months, the landlord may deliver a written notice giving at least 10 days before the termination of the agreement. (90.400(1)) No second opportunity to fix the problem is required. The 10-day notice for recurring tenant can only be issued after a 30-day written notice for cause was issued to the tenant previously.

Note: Many month-to-month landlords feel that they gain nothing by evicting for cause because both processes take 30 days and eviction without cause is subject to fewer defenses.

Eviction for Pets: The 10-Day Notice

A landlord may terminate a tenancy on 10-days' notice for violation of a rental agreement which prohibits pets capable of causing damage to persons or property. The tenant must remove the pet within the 10 days.

If the same breach recurs within 6 months, the landlord may terminate on 10-days' notice without giving the tenant another opportunity to remove the pet. (90.405)

Eviction for Nonpayment of Rent: The 72-Hour or 144-Hour Notice

In a week-to-week tenancy, if the tenant fails to pay rent within 5 days, (including the first day rent is due), the landlord may serve a 72-hour written notice. (90.400(2)(a))

In month-to-month or lease agreements, if the tenant fails to pay rent within 7 days (including the first day rent is due), the landlord may serve a 72-hour written notice no sooner then the 8th day. The notice must give the tenant at least 72 hours to pay or leave. (90.400 (2)(b)(A))

If the tenant is 4 days past due, and if the rental agreement provides, the landlord may serve a 144-hour written notice on or after the 5th day that rent is late. The notice must allow 144 hours (6 days) for the tenant to pay the rent or leave. (90.400(2)(b)(B))

Note: Both of these notices may be served by "nail and mail" if the agreement so provides. (See Nail and Mail, above)

Both forms of notice must specify the date and time by which the tenant must pay the rent.

If the tenant pays the rent within the 72 or 144 hours, the landlord cannot evict based on that notice. The tenant can pay by mailing the rent within the allotted time unless:

the notice is personally served;
the rental agreement and the notice state that payment must be made at a specific location;
the location is available to the tenant throughout the notice period's hours (e.g., a mail slot in the manager's door); and
the location specified for payment is either on the premises or at a location at which the tenant has made all of the previous payments in person. (90.155)

Eviction for Dangerous Tenants, Illegal Subtenants, and Drug Dealers: The 24-Hour Notice

The Act allows a landlord to end a tenancy on 24-hours written notice "specifying the cause" if the tenant, someone in the tenant's control, or the tenant's pet does any of the following:

seriously threatens immediate personal injury or inflicts substantial injury upon another tenant or the landlord;
inflicts substantial injury upon another tenant, a neighbor or a person who has the landlord's or another tenant's permission to be on the premises (i.e., a repair person);
intentionally inflicts substantial damage to the premises (does not apply to pets);
commits any act which is outrageous in the extreme. (90.400(3)) Note: "Outrageous in the extreme" covers conduct that is well beyond merely annoying or obnoxious. The example which prompted the term was defecating off a balcony in an apartment complex. It also includes prostitution, delivery or manufacturing of illegal drugs, intimidation which includes gang activity, and burglary.
occupies a place in violation of a written "no subletting or assigning" clause if the lawful tenant is gone and the landlord has not knowingly accepted rent from the occupant. An occupant who claims that the original tenant is still in possession of the premises bears the burden of proving this is true. (105.139)

If a tenant reasonably knows or should know (an objective standard) that a person is committing or is likely to commit an outrageous act (e.g. selling drugs) the tenant has a duty to ask that person to leave. If the tenant fails to ask that person to leave, then that tenant can be held responsible for the acts of the other person. A landlord, in such a case, must probe that the person did an outrageous act and that the tenant failed to ask the person committing the act to leave.

Note: These notices may be served by "nail and mail" except the one for an illegal subtenant. (90.155(4)(a))

Eviction for "Drug and Alcohol Free Housing" Violation: The 48-Hour Notice

If a tenant who has lived for less than 2 years in a drug and alcohol free housing violates the terms of the housing, the landlord may deliver a 48-hour eviction notice, specifying the date and time that the tenancy will end.

The notice must state that the tenant can fix the violation within 24 hours by changing conduct or otherwise, in which case the rental agreement will not end.

If the same violation occurs within 6 months, the landlord may end the agreement with a 24-hour written notice with no opportunity to fix the problem again. (90.400(7))

Illegal Activity

The landlord must start the eviction process by a no-cause, for-cause, or 24-hour notice if a tenant is involved in illegal activity. (90.400(3)(e)) If a tenant is aware of illegal activity in the premises, he should take steps to notify the landlord and proper authorities. The tenant may be considered part of the activity unless he can prove he was trying to stop it.

Notice Reason

30-day Without Cause: Landlord does not have to give a reason.

30-day For Cause: Violation of the rental agreement.

10-day: Keeping a pet which is not allowed by the rental agreement; Recurrence of problem from a prior for-cause notice.

72-hour: Nonpayment of rent after 7 days in month-to-month or lease agreements. After 4 days in week-to-week.

144-hour: Nonpayment of rent after 4 days.

48-hour: Violation of a Drug and Alcohol Free Housing agreement.

24-hour: Dangerous tenants, illegal subtenants, drug dealing, and/or other illegal activities.

Waiver of Right to Evict

In general, a landlord waives the right to a "for cause" eviction if the landlord accepts rent with knowledge of the breach. (90.415)

Example: If the rental agreement forbids parking in the driveway, you park in the driveway in January and the landlord was aware of it, yet accepts rent in early February, the landlord cannot evict you for parking in the driveway in January. The landlord's acceptance of rent in early February does not protect the tenant from eviction for a breach committed after the landlord has accepted rent, such as parking in the driveway in mid-February.

There are important exceptions to this rule:

if the landlord accepts partial rent before giving a nonpayment of rent notice because the tenant promised to pay the balance due by a certain date, the landlord can serve a 72-hour or 144-hour nonpayment of rent notice to apply if the tenant doesn't pay the balance when promised;
if the landlord accepts partial rent after serving a nonpayment of rent notice, the parties can agree in writing that the landlord can proceed to court on that notice if the tenant doesn't pay the balance when agreed;
if the landlord accepts rent prorated to the time fixed for termination under a notice of eviction for cause (other than the "cause" of nonpayment of rent);
there is no waiver if the landlord has accepted only the portion of rent paid from a public source under the Housing Act of 1937 (42 U.S.C. 1437) to supplement the tenant's rent; and
a landlord who has filed an eviction action (FED) based on a notice ending the tenancy for cause does not waive the right to evict by accepting rent (or serving a nonpayment of rent notice) while the tenant remains in possession of the rental, provided that the rent accepted does not cover time beyond the date it is accepted, and the tenant has written notice that acceptance of rent does not waive the landlord's right to continue with the eviction which is under way. (90.415)
if a landlord accepts rent but refunds it within 6 days, the landlord would not waive this right to evict. The refund may be made by personal delivery or first class mail (mailed within the 6 day period), and may be in the form of a check or cash from the landlord, but may not simply just a return of the tenant's check.

A landlord may accept regular weekly or bimonthly rent installments, without risking his right to evict.

The landlord also does not waive the right to evict when the landlord follows a court order to accept rent from the tenant and then pay it to the court.

C. Retaliation

Many tenants are hesitant to take actions to enforce their rights because they fear that the landlord will retaliate by evicting them. The Act Prohibits retaliatory conduct, (90.385) and retaliation may be ground for fighting the eviction.

The landlord cannot increase rent, decrease services, serve a termination notice, evict or threaten to evict if the motive is to retaliate against the tenant because the tenant complained, or threatened to complain in writing to the appropriate agency for any of the following reasons:

the premises have not been maintained according to law;
discrimination;
delivery of mail;
a violation of building, health or housing codes;
a violation of a term of a rental agreement, including failure to disclose ownership or utilities paid by the tenant;
the landlord's abuse of access; or
interruption of service.

The landlord also cannot retaliate in response to the following actions:

the tenant has joined or organized a tenants' union or organization;
the tenant has asserted the right to 30-days' written notice before a rent increase;
the tenant has testified against the landlord in any judicial legislative or administrative proceeding; and
the tenant has successfully defended against an eviction action brought by the landlord within the last 6 months.

If the tenant believes that he is facing a rent increase or being evicted for any of the above reasons, he should contact a lawyer.

Penalty: the tenant may get court order to recover possession, end the rental agreement, and recover up to two months' periodic rent or twice the actual damages, whichever is greater.

If the rental agreement is terminated, the landlord must return all security deposits and all prepaid rent.

Legal Eviction Despite Retaliation

Despite a retaliation defense, the landlord may legally evict a tenant in the following cases:

if the tenant originally caused the problem that is at issue;
if the tenant is in the default of rent (after deduction for any damages due to and claimed by the tenant, except claims for retaliation damages); or
if compliance with code requires depriving the tenant of the unit.

Even under such circumstances the tenant may be entitled to damages.

D. The Eviction Process

If a landlord has served an eviction notice (or the tenancy has expired by its own terms), but the tenant remains after the termination date, the landlord must file a court action to recover the premises from the tenant. The landlord may not force a tenant out until a judgment of possession has been awarded by the court. The tenant can also voluntarily deliver the rental to the landlord. (90.435, 90.147)

Warning: Everything possible should be done to avoid an eviction! Having an eviction judgment on your record may make it harder to rent in the future. It may be possible to arrange a dismissal as the final result of any successful settlement of the eviction action if you move out as agreed. Tenants should get a copy of the dismissed FED to show to future landlords when applying for rental. The court may or may not be willing to cooperate with this approach.

The Process

Being evicted follows a definite order starting from before the landlord gives the tenant notice.

1. The Problem. The tenant might not know that there is a problem if the landlord doesn't expressly mention it, but usually the landlord informs the tenant. This is the time to try to settle it.

2. The Notice. Every notice must be in writing and must give the tenant the full amount of time from the date on which he receives it. The landlord should specify the date and time of termination in the notice. If a tenant receives an FED after moving, he should show up to "first appearance" to say that he has moved. (See below)

3. The Filing. The landlord starts a Forcible Entry and Detainer, or "FED" by filing a "complaint" and a "summons" along with a copy of the eviction notice in district court. Any party is allowed to handle her own case in court without an attorney. (90.320) A landlord's employee or agent (including a property manager) may also handle a FED for the landlord. (105.130(4))

4. The Summons. The court clerk mails a copy of the complaint and summons to the tenant by first class mail. The landlord must also pay for a sheriff or private process server who attempts to give another copy to the tenant personally. If the tenant is not home, the process server tapes a copy to the tenant's front door.

The summons and complaint will give the tenant a "first appearance" date, which is usually 7 days after you receive the papers, excluding weekends and holidays.

5. First Appearance. Never ignore the Summons! If the landlord shows up at first appearance and the tenant does not, the landlord will automatically be awarded possession of the premises. The tenant may also have to pay any filing and serving costs incurred by the landlord.

With this judgment, the landlord can have the tenant removed from the premises by the sheriff. The eviction will also appear on your record.

If the tenant shows up and the landlord does not, the case will be dismissed and the court may order costs.

If both parties show up, the judge may encourage the parties to reach a settlement. Often, tenants will agree to move if the landlord will allow more time to move; or landlords will agree to let a tenant stay if the tenant pays the rent or fixes the problem.

Note: If the landlord agrees to let the tenant stay, the case should be dismissed. If the tenant has 10 days to leave, the judgment should say so.

If the parties do not agree to resolve the case, it will be set for trial - which should be within 15 days - and the tenant must file an answer by the end of the first court day.

Note: The tenant may be required to pay rent into court if the trial is delayed beyond this, unless the delay is requested or caused by the landlord. (105.137)

If the case is settled before first appearance, tell the judge at the first appearance so you know the result in the court's files is the same as your agreement.

The Trial

If the case goes to trial, the landlord will have to pay an additional amount to make up the difference between the original filing fee and the normal filing fee for a district court case. It is common for the trial to occur within a week of the first appearance.

Penalties

If there is a trial, the party that wins may be awarded attorney fees. (90.255) The tenant might ask the landlord to waive the costs for filing and serving the FED in return for consent to a judgment without a trial. (See Defending Against an Eviction, below) If these costs are not waived they will be entered as part of the judgment against the tenant.

If the judgment must be enforced to remove the tenant, the costs of enforcement will also be included. If the tenant's holdover is willful and not in good faith, the court may award the landlord not more than twice the periodic rent or twice the actual damages, whichever is greater. (90.427(4))

Note: The court can award attorney fees against the tenant only if the tenant decides to go to trial. (105.137(3)) If the landlord has or will get an attorney for trial, this may be an important reason to settle at first appearance.

Removing a Tenant

The landlord is not entitled to any "self-help" procedures. For example, the landlord may not move out a tenant's belongings and/or force a tenant out by cutting off essential services. If the landlord uses a self-help procedure, the consequences could be:

losing any right to recover unpaid rent, if the landlord unlawfully seizes and retains the tenant's belongings; (90.425(11))
charges of assault if the landlord uses physical force; or
not more than twice the periodic rent or twice the actual damages, whichever is greater. (90.375)

Once a judgment has been given by the court, a sheriff will serve the tenant a 3-day notice that eviction will follow. Only a sheriff may actually remove the tenant. The landlord has three options to remove a tenant's property:

if the sheriff has enforced the judgment, the landlord may elect to pay the moving and storage charges and have the sheriff remove the property;
if the sheriff has enforced the judgment, the landlord may elect to remove the property herself and store it according to the abandoned property section (90.425) (see Dealing with Personal Property after the Tenant Leaves); or
if the tenant has been continuously absent from the premises for at least 7 days after a judgment (and that judgment has not been enforced by the sheriff), the landlord may remove the property and store it according to the abandoned property section. (90.425)

To recover the personal property, see Dealing with Personal Property after the Tenant Leaves.

E. Defending Against an Eviction

Note: If you intend to defend against the eviction, you should have a lawyer. The price paid for having an eviction on your record may be greater than the benefit of proving a point. In addition, a landlord who brings an attorney is entitled to an award of attorney fees if you lose. If you bring an attorney and win, you are also entitled to an award of attorney fees.

Sometimes an eviction may be legal but terribly unfair. The landlord can give you a 30-day notice for no reason at all but usually there is a reason, even if it's not written down. Ask the landlord, ask others, and find the reason.

If the reason is a new policy decision, for example, the owner wants no pets on the premises, you might be able to negotiate if you join with other tenants.

Warning: If the court finds that the tenant acted willfully and in bad faith (i.e. knowingly made up a false defense), the court may award the landlord up to twice the damages or twice the actual rent, whichever is greater.

Groundwork

"Groundwork" for defending against an eviction should begin immediately, regardless of whether or not you have actually received notice. (For example, if you have withheld rent due to the landlord's failure to supply an essential service, be prepared to defend if the landlord tries to evict you.)

You should first contact your landlord, ask for an explanation, and try to reach a settlement to clear up the misunderstanding.

If negotiations don't work and while your memory is fresh, write down such things as dates, what happened, possible witnesses, and any other information which may relate to your eviction. Contact other tenants and ask if they have had similar experiences.

Getting a Lawyer

You should try to get a lawyer by the time of first appearance unless you can reach some form of agreement with the landlord which is acceptable to you. If you are unable to get a lawyer by the time of first appearance, ask the court for a day or so in which to find one. (See Appendix C) Be aware that if you use this delay, the court may ask you to pay rent into court if there is more than a 2-day delay.

Even if you are unable to get a lawyer to defend you, you are still entitled to a day in court. The law provides that a tenant who appears at first appearance without a lawyer has a right to go to trial by filling out an answer form which is available at the clerk's office. The answer must be filed with the court and a copy must be given to the landlord the same day as first appearance. The court will charge a filing fee ($38.60 in Multnomah County, at press time), but the first appearance judge can waive or defer the fee if you are very low-income. The court will assign you a time and place of trial when you file the answer. The form looks like this:

Answer Form

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR_________________ COUNTY

_________________________________
Plaintiff,

vs. No. _________________

_________________________________
Defendant(s).

DEFENDANT'S ANSWER

I (we) deny that the plaintiff(s) is (are) entitled to possession because:

1. _____ The landlord did not make repairs
List any repair problems: ____________________________________
______________________________________________________________
______________________________________________________________

2. _____ The landlord is attempting to evict me (us) because of my
(our) complaints (or the eviction is otherwise retaliatory).

3. _____ The eviction notice is wrong.

4. _____ List any other defenses: ______________________________________
______________________________________________________________
______________________________________________________________

I (we) ask that the plaintiff(s) take nothing by the complaint and that I
(we) be awarded my (our) costs and disbursements.

Date:_____________
Signature of defendant(s): _________________________________________

Information from the landlord's summons and complaint should be used to fill in the blanks. You should then check off the appropriate spaces and fill in the lines explaining why you think the landlord should not win the case.

Which space to check and which defenses will do the most good depend in part upon the kind of eviction notice the landlord is using.

Space #1 - Repairs Were Not Made

Check the first space in a nonpayment of rent eviction if you believe rent is not due because the landlord did not make repairs and list the repair problems in the blanks provided as well as how you informed the landlord before the FED was filed.

At trial, you will have to show that the repair problems caused enough "damages" to equal or exceed the unpaid rent. These damages may include loss of rental value. Also, if you are not using an essential service remedy (90.365), you may be entitled to damages for any additional expenses which you had because of the repair problems - such as water-damaged property due to a roof leak. (90.360(2))

Note: Tenant's have a responsibility to mitigate damage to their property that is occurring because of damages. For example, if the roof leaks, the tenant is responsible for moving the couch away from under the leak. (90.125)

Any rent you lawfully deducted under the essential service remedy should not be due as rent. You should assert that defense in the same way as if you were asserting a general habitability defense - by checking the first space and listing the repair problems on the lines provided. (See Eviction for Cause, above, and Tenant Remedies for Lack of Essential Services).

Space #2 - Retaliation

This is the one to check if you have received a 30-day notice without cause and believe that the eviction is retaliatory. (See Retaliation, above)

Space #3 - Eviction Notice is Wrong

This space applies if the landlord:

gave no written notice;
gave a notice which didn't allow the proper amount of time (e.g., less than 72 hours to pay rent); or
used a 30-day notice without cause when you are not a month-to-month tenant, etc.

Space #4 - Any Other Defense

This is a place to list any of the numerous defenses which are not common enough for one of the first 3 spaces. For example, if you believe the eviction is based upon an unlawful discrimination, this is the place to say so (e.g., "the landlord is trying to evict me because of my race").

The "any other defense" space is also appropriate when you are trying to show that rent is not due because you are entitled to damages for the following:

enforcement of illegal terms (See The Agreement Cannot Include...);
lockouts, abuse of access, or any substantial violation of the rental agreement by the landlord;
the landlord is evicting for cause and you believe the cause did not exist, that it was not enough to permit eviction, that you fixed the problem within the time allowed (or the landlord refused to accept a fix), or that the rule in the rental agreement which the landlord claims was broken was invalid.

Example: The lease violation was based upon a rule prohibiting guests, but the rule was adopted after the tenant moved in and without the tenant's consent.

Tip: You should check all the spaces and fill in all the defenses you believe you have, but you should not check a space or state a defense that you don't believe in good faith exists. "I don't have the rent" is not considered a defense.

If, at the trial, the landlord claims you are trying to raise a defense which is not stated in your answer, the worst that can properly happen is that the landlord will get a delay in order to prepare to meet the defense. In other words, the answer does not limit the defenses available to you if you don't fill it out correctly. (105.137(7))

Preparing for Trial

When preparing for the trial, remember that in most cases the court will only listen to testimony which you or your witnesses directly saw, heard, or otherwise perceived.

If an inspector looked at the repair problems, and you believe his testimony will help your case, you can subpoena the witness and any records with a form available at the court clerk's office.

Chapter 8: Moving Out | Top | Chapter 10: Dealing with Personal Property After the Tenant Leaves
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