Phil Querin Article - Some Tips and Traps - The FED Eviction Process

Want access to MHCO content?

For complete access to forms, conference presentations, community updates and MHCO columns, log in to your account or register.

July 19, 2017
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.

 

 

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 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 it 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 Prevailing Attorney Fees Trap

 

To underscore the importance of making sure the notice is correct before filing in Court, consider this scenario: Your tenant is late in paying the rent.  You quickly fill out and mail a 72-hour notice, wait six days and then file in Court.  At the first appearance (discussed below) you learn that the tenant is represented by legal counsel who has filed an answer alleging that the notice is defective.  You are now faced with the prospect of having to go to an attorney to find out just exactly what is wrong with your notice.  To your dismay, you learn that you sent the notice out on the 7th of the month, rather than the 8th.[1]   You were one day too early.  While this might seem to be a technical and unimportant mistake – the tenant still got five full days after the 7th of the month – it is not.  In legal parlance, the defect is “jurisdictional,” meaning that the Court has no alternative but to dismiss the case.  To make matters worse, since the tenant’s attorney filed an answer in Court, the tenant is the “prevailing party” and you must pay his or her legal fees.

 

Use of Current Legal Forms (MHCO has over 60 Forms Available to Members)

 

Too many times landlords and managers fall into the trap of using outdated legal forms – or worse – they hand-draft their own notices.  This can be fatal in Court.  As noted above, the Courts enforce strict compliance with the statutes.  The use of a hand-drafted notice is fraught with pitfalls:  The number of days to correct the default might be incorrect, the statement of the default might be insufficient, or the description of the landlord’s remedies might be overstated. 

 

Equally dangerous is the use of old forms that have become outdated due to changes in the law.  Landlords and managers should always note the date appearing at the bottom of the form.  If the date of the form precedes the most recent legislative year (e.g. 1997, 1999, 2001, etc.) you should check with the forms provider (e.g. MHCO) to make sure that there have not been any changes to the form.

 

For example, the 30-day termination for cause notice used to state that if there was a repeat violation within 6 months from the date of expiration of the 30 days, the landlord could issue a non-curable 20-day notice of termination.  However, due to a change in the statute, the 6-month period is now measured from the date of issuance of the 30-day notice.  In other words, the time within which the landlord may evict for a repeat violation is now measured from a different (and earlier) time period than before.  Use of the old form today would incorrectly state the landlord’s right to terminate, and arguably be defective.

 

The First Appearance

 

Experienced landlords and managers know full well that the first appearance is the time that many, if not most, FEDs 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 judgement of eviction.

 

Pursuant to statute, the first appearance must occur within approximately one to two weeks following the filing of the FED complaint and payment of fees.  It is imperative that the landlord or his representative appear at that time.  The failure to do so will result in an automatic dismissal.  Generally, the Court is more than willing to allow the parties to negotiate a resolution - such as a repayment of rent schedule – that will avoid setting the matter for trial. 

 

Landlords and managers are encouraged to take the first appearance process seriously.  If the case can be resolved at this juncture, all parties should strive to do so.  If the landlord has a tenant that they fully intend to evict, i.e. no settlement can be structured because of the seriousness of the violation, the facts should be fully discussed with an attorney before the first appearance.  Once the case has gone beyond that point and the tenant has secured an attorney, it may be too late.  If there is a defect in the notice, for example, it is far better to settle the case early, or unilaterally dismiss it and start over, than to have the matter set for trial and take the risk that the tenant’s attorney or the Court will spot the defective notice.

 

Pick Your Shots

 

As I have repeatedly emphasized, don’t go into Court on a weak case.  If the tenant has any sort of network within the community, it is a certainty that at least three things will occur: (1) The tenant will try to have all of his friends and neighbors testify against the landlord; (2) if you lose the case, you can fully expect that some of the tenants who have followed the dispute will try to “test” the landlord’s resolve to go back into Court on related issues, and (3) if you ever have to bring another action against the same tenant, he will argue that your claim is “retaliatory,”- in other words, that you are selectively prosecuting him.

 

Always make sure that you have sufficiently “papered” your file.  In most cases, it is helpful to precede a 30-day notice with one or more correction notices or letters requesting voluntary compliance.  In this manner the Court will see that you have “walked the extra mile” with the tenant.  You do not want to be accused of acting precipitously without having given the tenant fair warning of the consequences of non-compliance.

 

Conclusion

 

As noted, the FED process can be daunting to the uninitiated.  Sometimes the best lesson is to lose in Court.  But the cost of losing is frequently more than financial – it can threaten the landlord’s ability to effectively run the community.  If in doubt, the safest course of action is to first seek the assistance of those who have been there before you.

 


[1] You must wait seven full days from the date rent is due, before sending out the notice.  If rent is due on the 1st, this means that the earliest you may send out the notice is on the 8th.

Location Tags: