TEL-LAW tape number 7306:
brought to you by the Oregon State Bar and your local bar association.
Evictions
This is Tel-Law tape number 7306, Evictions, brought to you by the Oregon State Bar and your local bar association. The material presented is intended to alert you to possible legal problems and solutions.A landlord can evict a residential tenant only by using a court proceeding. A landlord may not legally evict a tenant by changing locks or terminating utility service to a unit, or by force or threat of force.
The legal proceeding the landlord must use is called a Forcible Entry and Detainer action, or "FED." The FED proceeding is quite speedy; its main purpose is to determine whether the tenant has the legal right to keep living in the rental when the landlord wants the tenant to move.
FEDs are usually based on an eviction notice that the landlord has previously given to the tenant. Such notices must be in writing. The most common notices include 30-day notices for "no cause"--that is, notices in which the landlord gives no reason for the eviction. Other common notices include 30-day notices for cause; 72-hour notices for nonpayment of rent; and 24-hour notices for outrageous or dangerous conduct. If the tenant is still in the rental after the period specified in the notice has ended, the landlord may then file the FED proceeding.
To file an FED, the landlord must complete a form called a complaint which is available from the court clerk, supply the clerk with a copy of the notice on which the case is based, and pay a filing fee. A landlord who cannot afford the filing fee may ask the court to waive or postpone payment of the fee. Most court clerks have a form for this purpose.
When the court clerk receives the complaint and the filing fee or a fee deferral, the clerk schedules the case for a preliminary hearing called a first appearance that will be held seven days after the date the tenant is served with the papers. Within one business day, the clerk mails the tenant a copy of the summons and complaint. In addition, a process server will either give a copy of these documents to the tenant personally, or, if the tenant is not available, will attach a copy of the summons and complaint to the main entrance of the dwelling unit. The summons tells the tenant when the first appearance is.
The purpose of the first appearance is to determine whether the tenant claims a legal right to remain in the rental. If only the landlord shows up, the landlord should get an order giving the landlord possession of the property. If no one shows up, or only the tenant shows up, the case should be dismissed. If both sides show up, the judge will want to know if the tenant wants to move, if the case is settled or if the tenant wants a trial. If the tenant requests a trial, it will be scheduled no later than fifteen days from the date of the first appearance.
To contest the case, the tenant must not only go to the first appearance, but also must file a form called an answer. The court clerk has these forms. The form lists a number of possible reasons the tenant may be able to win the eviction. The tenant should check any that apply and list other defenses that the tenant thinks are proper. The tenant may bring up a defense at trial that is not listed in the answer; if the tenant does that, the landlord can have the case postponed to be able to deal with the new defense. When filing an answer, the tenant must pay a filing fee. A tenant who cannot afford the filing fee can ask the court to waive or postpone payment of the fee. The court clerk may have forms for this purpose.
Each side is allowed to be represented by an attorney. If a tenant does not fight the eviction and the landlord is represented by an attorney, the court should not require the tenant to pay the landlord's attorney fees. The court may give an unrepresented landlord extra time to get an attorney.
Along with showing the court reasons the tenant should not have to move, the tenant also may bring up claims against the landlord that may entitle the tenant to money from the landlord. Such reasons are called counterclaims; a tenant generally will need an attorney to raise counterclaims, because the forms provided by the court clerk don't include them.
If the tenant counterclaims or withholds rent, at the request of either side the court may require the tenant to pay upcoming rent directly to the court. In deciding the case, the court will determine the amount of that money due to each side, and, if no additional rent is due to the landlord, the tenant will win the right to stay. The tenant may pay the rent into court any time before a judgment deciding the case is entered.
A judge also may require a tenant to pay rent into court as a condition of granting a postponement of the trial for longer than two days.
FED trials are handled just like other civil trials. Either side can request a jury. If the tenant wins, the tenant is allowed to stay in the unit and may recover a judgment from the landlord for any money the court decides is owed to the tenant. If the landlord wins, the judge will order the tenant to move by a certain date. The judge may order the losing side to pay the winning party's court costs and the reasonable attorney fees of the winning side if the winning side was represented by a lawyer.
If the tenant has not moved by the date named by the judge, the landlord can get an order directing the sheriff to enforce the court's judgement. The sheriff will post a notice at the rental unit telling the tenant to move within three days. If the tenant does not do so, the sheriff will return and remove the tenant from the premises.
Although the FED process is set up to be used by people who don't have lawyers, the landlord tenant law is surprisingly complicated; an attorney may be able to suggest options, arguments, claims and defenses of which a person may be unaware.
For more information about the kinds of notices that must precede an eviction, listen to Tel-Law tape number 7305. To learn about some common defenses that can stop an eviction, list to Tel-Law tape number 7307.
This is a complex and changing area of the law. It is important that you realize that some of the information on this tape may be out of date by the time you hear it. This tape is not intended to be legal advice regarding your particular problem, and is not intended to replace the work of an attorney. If you do not have an attorney, the Oregon State Bar Lawyer Referral Service can assist you. The number to call is 684-3763 or toll-free in Oregon, 1-800-452-7636. They will help you contact a lawyer who can advise you.
The foregoing text is a transcription of a Tel-Law transcript that you can hear by calling 503-620-3000 or toll free (in oregon only) at 1-800-452-4776. OLA brings this transcription to you with the cooperation of the Oregon State Bar. this script is based on Oregon law, produced by volunteer lawyers as a public service. The law of other states may be different. Also, the information may be out of date. OLA encourages you to seek an attorney before relying upon this information.
(10/18/95)