Real Estate & Land Use Advisory Bulletin
Oregon Court of Appeals Rules Evictions Invalid
in Two Important Landlord-Tenant Opinions
By Peter
Leichtfuss
[Oct. 2004]
The Oregon Court of Appeals has recently issued two
rulings related to forcible entry and detainer (FED) eviction proceedings
which may affect clients’ real property interests. Not only
do these opinions serve to clarify two issues of real estate law
that are often uncertain, they serve as a timely reminder of the
need for legal counsel due to the intricate nature of the landlord/tenant
relationship and the often strict interpretation of this relationship
by the courts.
Guardian Management, LLC v. Zamiello, 194 Or App
524, 95 P3d 1139 (2004).
Background: The landlord brought an FED eviction
action against a residential tenant. The notice of eviction was
served upon the tenant via “nail and mail,” meaning
the landlord affixed a copy of the notice to the premises front
door and also mailed a copy of the notice to the tenant. The landlord
had served notices in this manner for four years without any objection
from the tenant. At trial, the tenant asserted that the landlord
violated the rental agreement by attempting to serve the termination
notice in a manner that was inconsistent with the parties’
lease agreement. HELD: The landlord violated the rental agreement
by attempting to serve the tenant with termination notice by mail
and attachment when the parties’ lease did not allow such
service. Despite the fact that the landlord had employed a similar
method of service on numerous prior occasions, the tenant’s
mere silence does not act as an express waiver of the right to proper
service, nor can it have the effect of estopping the tenant from
raising improper service as a defense at trial.
Analysis: This case clarifies the scope and importance
of two of the most common defenses raised in eviction proceedings:
defective notice and waiver. Nearly all commercial and residential
leases require notice of eviction before proceeding with an eviction
action. Failure to serve a proper notice prior to beginning an eviction
action will therefore often prove fatal should the landlord attempt
to retake possession of the premises. The case also serves as a
strong reminder that equitable defenses such as waiver and estoppel
are rarely effective in the eviction context, and therefore strict
adherence to the terms of the parties’ lease agreement must
be followed at all times.
Kerr v. Jones, 193 Or App 682 91 P3d 828 (2004).
Background: Several parties held property as tenants
in common. After some of the co-owners filed for partition of the
property, the court ordered that a partition take place. As a result
of the partition, the plaintiff purchased the interest of the defendant
in the real property. Despite the outcome of the partition action,
the defendant appealed the partition and continued to occupy the
real property. The plaintiff then filed an FED eviction action to
gain possession of the real property occupied by the defendant.
HELD: Despite the fact that the partition of real property had been
ordered and defendant was no longer an owner of the real property,
the plaintiff had no right to bring a forcible entry and detainer
action to reclaim possession. According to the court, because the
defendant had entered the property as a co-owner, he had not entered
the property by force which would be a necessary condition in the
circumstances to permit a summary type FED eviction within the context
of ORS 105.115(1).
Analysis: The Kerr opinion clarifies
that the forcible entry and detainer action is generally unavailable
where the person occupying the property entered under actual or
color of title. Oregon courts have previously held that an FED action
is unavailable to retake possession of property after breach of
a land sale contract (absent specific statutory authority), and
this opinion clarifies the definition of “forcible entry”
necessary to maintain an FED action. Of course a tenant enters by
actual leasehold title and it would be interesting for the courts
to address why a summary eviction is acceptable when a tenant fails
to surrender the premises when a lease is terminated as opposed
to failing to surrender the premises when a land sale contract terminates
or a partition of a co-tenancy occurs. This case failed to explain
or justify the distinction. Consequently, parties who seek to retake
possession of property due to a failed transaction or other ownership
arrangement are advised to seek alternate remedies.
The purpose of this article is to make
the firm’s clients aware of legal rulings which may affect
the operation or value of their real estate holdings and investments.
If you have a question regarding these rulings or real estate law
generally, please don’t hesitate to call the firm for assistance.
We recommend you contact us for a no-obligation consultation prior
to any eviction proceedings involving your interest in real property
to determine what legal work is necessary or desirable to best protect
your interests.
For further information, please contact:
This Advisory is a publication of the
Real Property Group of Davis Wright Tremaine LLP. Our purpose in
publishing this Advisory is to inform our clients and friends of
recent developments in real estate, land use and construction law.
It is not intended, nor should it be used, as a substitute for specific
legal advice as legal counsel may only be given in response to inquiries
regarding particular situations.
Copyright ©
2004, Davis Wright Tremaine LLP.
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