2017 ORS 105.120¹
Notice necessary to maintain action in certain cases
  • waiver of notice
  • effect of advance payments of rent

(1) As used in this section, “rent” does not include funds paid under the United States Housing Act of 1937 (42 U.S.C. 1437f).

(2) Except as provided in subsection (3) of this section, an action for the recovery of the possession of the premises may be maintained in cases provided in ORS 105.115 (Causes of unlawful holding by force) (1)(b), when the notice to terminate the tenancy or to quit has been served upon the tenant or person in possession in the manner prescribed by ORS 91.110 (Notices to be in writing) and for the period prescribed by ORS 91.060 (Tenancy from year to year) to 91.080 (Termination when expiration of tenancy fixed by terms of lease) before the commencement of the action, unless the leasing or occupation is for the purpose of farming or agriculture, in which case the notice must be served for a period of 90 days before the commencement of the action. Any person entering into the possession of real estate under written lease as the tenant of another may, by the terms of the lease, waive the giving of any notice required by this subsection.

(3) An action for the recovery of the possession of a dwelling unit to which ORS chapter 90 applies may be maintained in situations described in ORS 105.115 (Causes of unlawful holding by force) (2) when the notice to terminate the tenancy or to quit has been served by the tenant upon the landlord or by the landlord upon the tenant or person in possession in the manner prescribed by ORS 90.155 (Service or delivery of written notice).

(4) Except when a tenancy involves a dwelling unit subject to ORS chapter 90, the service of a notice to quit upon a tenant or person in possession does not authorize an action to be maintained against the tenant or person in possession for the possession of premises before the expiration of any period for which the tenant or person has paid the rent of the premises in advance.

(5) An action to recover possession of a dwelling unit subject to ORS chapter 90 may not be brought or filed against a tenant or person in possession based upon a notice under ORS 90.427 (Termination of periodic tenancies) to terminate the tenancy until after the expiration of any period for which the tenant or person has paid the rent of the dwelling unit in advance, unless:

(a) The only other money paid by the tenant was collected as a last month’s rent deposit as provided under ORS 90.300 (Security deposits); or

(b) The only unused rent was paid by the tenant for a rental period extending beyond the termination date specified in a valid outstanding notice to terminate the tenancy and the landlord refunded the unused rent within 10 days after receipt by delivering the unused rent to the tenant in person or by first class mailing. [Amended by 1973 c.559 §35; 1981 c.753 §6; 1983 c.303 §5; 1985 c.588 §13; 1989 c.506 §18; 1993 c.369 §15; 1995 c.559 §52; 1997 c.577 §31; 1999 c.603 §35; 1999 c.676 §26; 2007 c.906 §36; 2013 c.294 §15]

Notes of Decisions

Where landlords failed to show that tenancy was terminated or notice to quit given under this sec­tion prior to commence­ment of FED pro­ceed­ing, trial court’s dismissal of ac­tion was proper. Teresi v. Gina Belmonte Corp., 31 Or App 1231, 572 P2d 6479 (1977)

Where lease extension agree­ment incorporated pro­vi­sions of original lease, which had provided that $1800 prepaid rent was to be applied to last three months of ten-year rental period, $1800 was prepaid rent to be applied only for last three months of new rental period, and tenants did not have de­fense under this sec­tion against termina­tion of lease for rental pay­ment default. Powers v. Kirkman Laboratories, Inc., 45 Or App 1083, 610 P2d 280 (1980), Sup Ct review denied

FED ac­tion for land leased for agricultural purposes may be instituted as soon as tenants wrongfully hold over beyond fixed expira­tion date of lease and this sec­tion does not require 90 days’ notice prior to commence­ment of ac­tion if tenancy is for fixed term. Federal Land Bank of Spokane v. Schelske, 87 Or App 346, 742 P2d 659 (1987)

Notes of Decisions

Provisions for early trial, posting of security for accruing rent during continuance and restric­tion of triable issues do not violate Due Process or Equal Protec­tion clauses of federal constitu­tion. Lindsey v. Normet, 405 US 56, 92 S Ct 862, 31 L Ed 36 (1972)

Proceedings under the Oregon forcible entry and detainer law, including pro­ceed­ings against nonresident defendants, are not subject to the general statutes relating to service of process. Lexton-Ancira, Inc. v. Kay, 269 Or 1, 522 P2d 875 (1974)

A forcible entry and detainer pro­ceed­ing is a “local ac­tion” for choice of law purposes. Fry v. D.H. Overmyer Co., 269 Or 281, 525 P2d 140 (1974)

the Defendant Did not State Good Affirmative Defenses By Alleging

a viola­tion of public policy forbidding a franchisor to refuse to renew a franchise except for good cause; A “retaliatory evic­tion” for a refusal to engage in improper business practices; and an implied agree­ment to renew based upon con­duct and prior dealings. William C. Cornitius, Inc., v. Wheeler, 276 Or 747, 556 P2d 666 (1976)

In forcible entry and detainer ac­tion to recover pos­ses­sion of commercial prop­erty, claim for attorney fees could not be litigated. Grove v. The Hindquarter Corp., 45 Or App 781, 609 P2d 840 (1980)

In forcible entry and detainer ac­tion for pos­ses­sion of commercial premises, landlords could not recover attorney fees. Owen J. Jones & Son, Inc. v. Gospodinovic, 46 Or App 101, 610 P2d 1238 (1980)

Equitable de­fense may be raised in FED pro­ceed­ing. Rose v. Webster, 51 Or App 293, 625 P2d 1329 (1981)

In FED ac­tion to recover commercial prop­erty, defendant cannot assert counterclaim unless counterclaim is authorized by statute. Class v. Carter, 293 Or 147, 645 P2d 536 (1982)

Law Review Cita­tions

16 WLR 291 (1979)

Chapter 105

Atty. Gen. Opinions

Private process server in a forcible entry and detainer ac­tion, (1975) Vol 37, p 869

1 Legislative Counsel Committee, CHAPTER 105—Property Rights, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors105.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 105, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano105.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.