Eviction - Going to Court
Authored By: Legal Aid Services of Oregon
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IMPORTANT: This is an excerpt from the 2010Landlord-Tenant Law in Oregon booklet. It is for general educational use only. It is not a substitute for the advice of an attorney. If you have a specific legal question, you should contact an attorney. The information in this booklet is accurate as of May 2010. Please remember that the law is always changing through the actions of the courts, the legislature, and agencies.
Please see the booklet for further answers to these questions.
TIME LIMIT WARNING: Under state and federal laws there are time limits for taking action to enforce your rights. Most lawsuits related to the rental agreement and the Oregon Residential Landlord and Tenant Act must be filed (started in court) within one year of the incident. There may be other - shorter - time limits that apply in other cases. Ask a lawyer about the time limits that could apply in your situation.
The landlord must go to court to legally force you to move. The landlord will file a lawsuit called an FED, forcible entry and detainer. The sheriff or someone serving the court papers (FED Summons and FED Complaint) will hand them to whoever answers the door at your home or will tape them to the door and mail a copy later. The papers will tell you when and where to appear for court for what is called first appearance. The date will be about 7 days away in most counties. It is a good idea to get legal advice as soon as you get the papers.
When you go to court on the date listed on the court papers, this is called "first appearance." The process varies from county to county. In most counties in Oregon, tenants may:
1) Ask the judge to dismiss the case if the landlord does not show up;
2) Tell the judge about any agreements you made with the landlord before court. If the landlord agreed to give you time to move, both you and the landlord should go to first appearance and tell the judge the terms of the agreement;
3) Ask the judge for a little time to move and have a good reason; or
4) Ask the judge for a trial and a fee waiver or deferral if you have a defense.
The judge may ask you to try to work the problems out with your landlord by going through a mediation, before a trial is scheduled.
The landlord might ask you to agree to and sign a "stipulated order." "Stipulated" means that both you and the landlord agree to the terms of the paper that you sign. The stipulated order will sometimes say that you can stay in your place if you pay all of the back rent and other costs by a certain date and it can also require you to stay current on your rent for the next three months after you make the agreement. It will also probably say that you agree to move out if you don't pay by the agreed-upon date and that the landlord will have a judgment for the rent (a court order that says you owe the money). You don't have to sign the stipulated order, but if you do and don't follow what it says, the landlord can get a judgment against you and can enforce the agreement. If you live up to the agreement but the landlord says that you did not, you have the right to find out what the landlord says and to have a hearing before the sheriff moves you out. You should carefully read any papers the landlord gives you before signing.
If you ask for a trial and you do not have an attorney, you must fill out a form answer and file it on the same day that you first go to court. Most courthouses have form answers you can use to describe your defenses. There will be a filing fee in court. If you cannot afford the filing fee, ask the judge for a fee waiver or deferral at first appearance at the same time that you ask for a trial. Get a trial date from the clerk when you file the form answer. It is a good idea to talk to a lawyer before asking for a trial, even if you are going to represent yourself.
When you go to court, you should get there on time and be neatly dressed. Look at the judge while speaking, stay calm, and be polite.
If you do not show up in court for first appearance on the date listed in the papers, your landlord wins automatically. The landlord will get a court order directing you to move and may have the sheriff or process server post a four-day notice.
When you file your answer and ask for a trial, the court clerk will give you a date for your trial. Prepare for your case before you go to court.
At the trial you will need to prove the defenses listed in your answer. Bring photos of the conditions, copies of letters from and to your landlord, and other papers (receipts, rental agreements) that prove your case. Take witnesses who heard the landlord refuse to make repairs or who saw the conditions. Get to court on time and dress neatly. Stay calm and be polite to the judge and the landlord.
If you have a lawyer and win, the judge should order the landlord to pay your attorney fees. If the landlord has a lawyer and you ask for a trial and lose, the judge probably will order you to pay for the landlord's attorney fees and costs. One type of costs is called a prevailing party fee. If you do not have much income or property, state law may protect you against this order.
Yes, but you should try to talk to a law office before going to the first appearance. Many tenants and landlords go to the first appearance without an attorney. Most courts have form answers that you can fill out describing your defenses.
It is helpful to have a lawyer if there is a trial in your case. At the trial you will need to prove the defenses that you listed in your answer. See above for information about trials. You should contact a law office before going to the trial if you did not do so earlier.
Yes. The landlord may get a court order if: 1) you don't show up for court, or 2) you enter into a stipulated judgment (an agreement with the landlord that the judge signs as an order) and you don't leave by the agreed-upon date, or 3) you make an agreement with the landlord that the court enters as an order that you can stay if you pay rent or take some other agreed-upon action, but you don't do what you agreed to do, or 4) you go to trial and the judge orders you to leave by a certain date.
If you do not move by the date listed on the order, the landlord can have the sheriff or process server post a four-day notice on your door. If you don't move out by the time and date listed on the notice, the sheriff will come back and require you to leave while the landlord changes the locks. After that, you risk criminal charges if you return without permission.
If there is a trial in my eviction case and the landlord wins, do I have to pay back rent and legal costs?
In most cases, the landlord must sue you in a separate court case to get rent that is owed. If you ask for a trial and lose, you may be asked to pay your landlord's attorney fees and court costs.
If you have signed a "stipulated order" and don't pay the rent that you agreed to pay, the landlord will have a judgment against you for the rent if the order provides for this. (See the question above on "first appearance" for more information about stipulated orders.)
Even if the landlord wins a judgment for back rent or for attorney fees and costs, your income might be exempt and the landlord could not take it until your income increased.
If you have not paid your rent, the landlord may give you a 72-hour eviction notice on the 8th day of the month or a 144-hour notice after the 4th day of the month. If you do not pay within the period of the notice--either 72 hours or 144 hours--the landlord may file an FED in court seeking an eviction order. Within a few days, the sheriff will serve you with the legal papers or tape the papers to your door, telling you to go to court for the first appearance on a date listed in the papers. That date is usually a few days to a week after you get the papers.
When you go to the first appearance, you can ask for some time to move or ask for a trial. If you ask for a trial, a trial is usually held within one week of the date of the first appearance, but it could be as early as the next day. If you lose the trial or if you do not move on the date agreed upon, then the landlord files a paper causing the sheriff to go out to your home to put a four-day notice on your door. You will have four days to move. If you do not move within the time listed on the notice, the sheriff will return and require you to leave while the landlord changes the locks.