|
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.
return to Advisory
Bulletins main page
|
