COOS COUNTY RESIDENTIAL EVICTION - COMMON QUESTIONS

 

COOS COUNTY

 

RESIDENTIAL EVICTION - COMMON QUESTIONS

 

What is a Residential Eviction?

 

       A Residential Eviction is a court action by a landlord against a tenant to remove (evict) the tenant from a rented dwelling (house, apartment, mobile home, mobile home space, or floating home).

 

What is an F.E.D?

 

       F.E.D. stands for FORCIBLE ENTRY OR DETAINER, which is what the eviction process used to be called.

 

Must a landlord file an eviction action with the Court?

 

       Yes, Oregon law requires a landlord to file an action for eviction with the Circuit Court.  It is illegal for a landlord to evict a tenant without a court order.

 

What if the landlord wants to make a claim for back rent or damages?

 

       A residential eviction action is solely for the purposes of the eviction itself.  If any back rent or damages are claimed, the landlord must file a separate action.

 

Is there anything a landlord must do before filing for a residential eviction?

 

       Yes, a landlord must serve a written notice on the tenant to vacate the dwelling.  The type of notice, and the timeframe in which the landlord may demand that the tenant vacate the premises, is regulated by state law, specifically Oregon Revised Statutes chapter 105.  Eviction notice forms are available for purchase at office supply/stationery stores.

 

Is there anything that the tenant can do at this point?

       The tenant may want to talk to a lawyer.

How does a landlord file a residential eviction?

       After delivering notice to the tenant, and waiting the appropriate time, a landlord can file a residential eviction action by filling out a complaint.  Complaint and summons forms are available at the "small claims office" (Room 216) in the North Bend Courthouse Annex.  Fees are required, and the landlord must bring a copy of the eviction notice to the clerk's office in order to file the action.  The clerk will schedule a "first appearance date."

What if the landlord or tenant does not have the money to pay the filing fees?

 

            If either the landlord or the tenant cannot pay filing fees, that party can request a fee deferral form from the clerk in the small claims office. A completed form must include an explanation of why the party needs a fee deferral.

 

Is either the landlord or the tenant entitled to a court-appointed attorney?

 

            No.

 

How does the tenant learn about the landlord's residential eviction action?

 

            A copy of the complaint and the summons will be served on the tenant by a private process server or by a Coos County sheriff's deputy. The court clerk will also mail a copy to the tenant's address.

 

What happens at the first court appearance?

 

            If the tenant does not appear, the court will issue a judgment in favor of the landlord for return of the property and court costs.  If the tenant appears but not the landlord, the court will dismiss the action.

            If both parties appear, the court will determine if the tenant wants to contest the case and have a trial.  The parties may want to attempt a settlement out of court.  The free services of a trained mediator may be available to help the parties.

If the landlord and tenant reach an agreement with the tenant agreeing to vacate the dwelling, the court will issue a judgment to that effect.  If any other kind of settlement is reached, the court will approve the agreement and dismiss the case. 

If the tenant does not want to challenge the eviction, a judgment will be entered as requested by the landlord.

 

What happens if the landlord and the tenant cannot settle the case?

 

If a settlement cannot be reached, the parties will need to go to the small claims office so that the tenant can file an "answer" on the form provided by the clerk.  Additional fees will have to be paid by both sides.  The answer MUST be filed, and fees paid, by 4:30 p.m. on the same day as the first appearance.

 

Is the case automatically set for a jury trial?

 

             The trial will be before a judge unless one party requests a jury trial.

 

How long before the case goes to trial?

 

            Normally a trial will take place within 5 business days of the initial court appearance.  If

the trial date turns out to be more than 15 days away, the landlord can demand that the tenant pay any accruing rent into court.

 

What happens at trial?

 

            At trial, the court will allow each side to present evidence of their claims against the other side.  Landlords and tenants should bring canceled checks, account books, dishonored checks, contracts, photographs, building inspection reports, insurance and housing reports, and any other documentation to support their claims.  The parties should also have witnesses available who can substantiate these documents.  Witnesses can be subpoenaed to attend the trial.  The court clerk has subpoena forms.

 

What happens after the trial?

 

The court will issue a judgment based upon either a jury verdict or the judge's decision.  If the tenant wins, the case will be dismissed and the tenant can stay on the property.  If the landlord wins, a judgment will be issued and the landlord will be allowed to start the eviction.  The winning party may ask to recover its court costs.  If the landlord prevails, he may also ask for the costs of eviction.

 

How is the eviction performed?

 

The landlord may NOT use private help to evict a tenant, even if the judgment orders the tenant to vacate.  The landlord must file a notice of restitution and pay a fee. Notice forms are available in the small claims office.  The Sheriff or a private process server will serve the tenant with the notice to vacate. The tenant will then have four days to vacate. If the tenant still does not vacate the dwelling, the landlord must file for a writ of execution of judgment and pay additional fees. Only then will the Sheriff use physical force to remove the tenant.  Unless the judgment otherwise states, neither the notice of restitution nor the writ of execution can be issued more than 60 days after the date of the judgment or more than 60 days after the date specified for possession in the judgment, whichever is later.

 

What happens if there was an agreement in mediation which is not followed?

 

The landlord can file an "affidavit of non-compliance" with a notice of restitution with the small claims clerk.  A copy is served on the tenant.  Unless the tenant immediately requests a hearing based on a proper objection, judgment is entered for the landlord, who can begin the eviction process the same as if the landlord had won at trial.