MHCO Article: The Eviction Process And Judgments Of Restitution

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December 14, 2016
Phil Querin
MHCO Legal Counsel
Querin Law

 

The eviction process can be daunting to those landlords and managers who rarely, if ever, have been involved in the unpleasant task of trying to remove a tenant from a community.  An eviction (formally known as a “forcible entry and detainer” or “FED”) is an expedited legal procedure designed to allow landlords to obtain possession of their property through the court system.  When the eviction involves a space at a manufactured housing community, it is the space, not the home, that is returned to the landlord.  Following a successful eviction, the court will render a “judgment of restitution” to the landlord.  This means that the space will be restored back to the landlord and the tenant’s right of possession to the space has been taken away.  However, this leaves the issue of the manufactured home sitting on the space.  Does an evicted tenant have any further rights to the home, and if so, how are those rights exercised?  It is the abandonment process described in ORS 90.675, that addresses this issue, as we will discuss below.  The rule to remember, however, is that once the court has granted the eviction, i.e. awarded the landlord a “judgment of restitution” the only legal way for the home to be removed or resold is in accordance with the abandonment process described in ORS 90.675.[1]

 

 

Do You Need an Attorney?

 

Oregon, unlike our neighbor to the North, does not require landlords to obtain the use of an attorney to appear in FED court.  The necessary summons and complaint can be obtained from the courthouse and they can be filed and served quickly.  This has its advantages and disadvantages:  It is good insofar as it keeps the cost of the process down, but it is bad if the owner or manager fails to strictly follow all of the legal procedures required by the statutes.  Accordingly, for the inexperienced manager or new owner, it is strongly, recommended that guidance first be sought, either through the MHCO, from an experienced attorney, or by consulting with a knowledgeable community management company.

 

Strict Compliance

 

Since the FED process is designed to be a “summary” or quick proceeding, the law imposes upon those seeking its assistance, i.e. owners and managers, the duty to strictly comply with all of the requirements set out in the statutes.  This means, for instance, that the written notice that must precede the filing of the complaint (e.g the 72- hour nonpayment of rent notice or the 30-day notice of termination for cause) must be properly filled out to the letter.  Since the notice is required to be attached to the FED complaint, and thereby becomes a part of it, if the notice is defective in any respect, the Court can unilaterally dismiss it – thus forcing the landlord or manager to start all over again.  It is for this reason that before actually filing the summons and complaint which starts the FED court process, the plaintiff should closely review the notice to make sure it complies with the law.

 

The First Appearance

 

At the time the summons and complaint for eviction are filled out, a “first appearance date” will be inserted in the summon.  This date is the time for both landlord and tenant to appear before the court.  At that time, if the matter cannot be mediated or resolved, the tenant has to inform the judge whether he/she will either move out at a designated time, or request a trial to contest the eviction proceeding.  If the tenant wants to fight the eviction, the judge will usually require that they promptly file an answer setting forth their legal defenses, and set the matter for trial.  Experienced landlords and managers know full well that the first appearance is the time that many, if not most, evictions are settled.   If the default is nonpayment of rent, the landlord and tenant can simply enter into a stipulated payment arrangement providing that if it is not followed by the tenant, the landlord may come back to court and upon filing of the necessary papers, have the judge issue the judgment of restitution.  It is imperative that the landlord or his/her representative appear at the first appearance.  The failure to do so will result in an automatic dismissal of the eviction, and the landlord will have to start all over. 

 

The Judgment of Restitution 

 

As noted above, the judgment of restitution is the equivalent of the court’s order in favor of the landlord’s complaint for eviction, and requires that the tenant vacate the premises – which in a manufactured housing community, is the space upon which the home is situated.  In most cases, the court will insert a date in the judgment of restitution that will give the tenant a reasonable time to remove their belongings.  Once that date has expired, however, the tenant has no further right to come upon the premises.  Under the abandonment statute, assuming that the tenant voluntarily vacates the space, after seven (7) days of the tenant’s absence following the date of issuance of the judgment of restitution, to commence the abandonment procedure, which is legally initiated by issuance of the 45-day letter to the tenant and other parties required by law.  During this 45-day period (assuming there is no lienholder), the tenant may contact the landlord to make arrangements for removal of the home.  However, such removal is conditioned upon payment of all “storage charges” which cannot exceed the existing rents.  However, as discussed below, the landlord may not require the payment of accrued storage charges prior to removal of the home if the tenant was forced to vacate the space as a result of the landlord’s executing upon the judgment of restitution.

 

Execution Upon a Judgment of Restitution

 

Sometimes the tenant may refuse to move, even when the court has given them a firm date to do so in the judgment of restitution.  In such cases, the landlord must go to the clerk of the court to obtain a notice of restitution giving the tenant four (4) days to move out.  The notice of restitution is mail and personally served (or attached to the front entrance) by the sheriff or a civil process server.  After execution of the four (4) day period, if the tenant has still not vacated, then the landlord must ask the sheriff to execute upon the judgment of restitution originally granted by the court at the conclusion of the eviction trial.  The means that the sheriff will go to the premises, remove the occupants and post a trespass notice on the home, advising the tenants that any further entry will result in arrest and prosecution.  Although the abandonment law does not require the landlord to wait seven more days before commencing an abandonment, it does prohibit the landlord from recouping any accrued storage charges, should the tenant elect to remove the home following receipt of the 45-day abandonment letter.  It is for this reason that landlords should only seek execution upon the judgment of restitution when absolutely necessary – i.e. when the tenant simply refuses to voluntarily vacate following the court’s issuance of a judgment of restitutio

 


[1] The only exception would be if, prior to the tenant’s abandonment, the landlord and tenant entered into a written agreement whereby the tenant waived his/her rights under the abandonment statute.  See, ORS 90.675(21)(A).