Chapter 168 Oregon Laws 1999

Session Law

AN ACT

HB 2387

Relating to nuisances; amending ORS 105.550, 105.555, 105.560, 105.565, 105.575, 105.580, 105.585, 105.590, 105.595, 453.882 and 475A.075; and repealing ORS 105.570.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 105.560 is amended to read:

105.560. (1) An action to restrain or enjoin a nuisance described in ORS 105.555 may be brought by the Attorney General, district attorney, county attorney, city attorney or a person residing or doing business in the county where the property is located. The action shall be brought in the circuit court in the county where the property is located. Except as provided in subsection (5) of this section, the action may be commenced in the small claims department of the circuit court for the county where the property is located.

(2) In addition to any other remedy that may be available under ORS 105.550 to 105.600, a plaintiff in an action brought to restrain or enjoin a nuisance described in ORS 105.555 may seek damages for mental suffering, emotional distress, inconvenience and interference with the use of property suffered by the plaintiff by reason of the activities constituting a nuisance.

(3) The court may award reasonable attorney fees to the prevailing party in an action under ORS 105.550 to 105.600 unless the action is commenced and tried in the small claims department of circuit court. Attorney fees may not be awarded to any party in an action under ORS 105.550 to 105.600 that is commenced and tried in the small claims department of circuit court.

(4) The court may consolidate all actions that relate to the same property and that are brought to restrain or enjoin a nuisance described in ORS 105.555. Consolidation in the small claims department of a circuit court shall be for purposes of trial only. A separate judgment shall be entered for each action in the small claims department of circuit court.

(5) An action may not be brought in the small claims department of a circuit court to restrain or enjoin a nuisance described in ORS 105.555 if the property alleged to be a nuisance is licensed under ORS chapter 471 or 472.

SECTION 2. ORS 105.565 is amended to read:

105.565. (1) Any action shall be commenced by the filing of a complaint alleging facts constituting the nuisance, and containing a legal description of the property involved and an allegation that the owners of record of the property have been notified of the facts giving rise to the alleged nuisance at least 10 days prior to the filing of the action with the court. The complaint must specify whether the plaintiff will seek the remedy provided in ORS 105.580 (2).

(2) The complaint shall be served on owners of record [and occupants of the property] as provided in ORCP 7. No service need be made prior to an application for a temporary restraining order, provided the procedures of ORCP 79 B are followed with regard to all persons entitled to service under this section.

(3) Except in those cases tried in the small claims department of a circuit court, any party [or an owner of the property] may demand a trial by jury in any action brought under ORS [105.560] 105.550 to 105.600.

(4) On the issue of whether property is used in violation of ORS 105.555, evidence of its general reputation and the reputation of persons residing in or frequenting it shall be admissible.

SECTION 3. ORS 105.580 is amended to read:

105.580. (1) Except as provided in subsection (3) of this section, if the existence of the nuisance is established in the action, an order of abatement shall be entered as part of the final judgment in the case.

(2) The order of abatement may direct the effectual closing of the premises, building or place against its use for any purpose, and so keeping it closed for a period of one year, unless sooner released. The court shall not include provisions for the closing of the premises under the provisions of this subsection unless that relief is specifically requested in the complaint.

(3) The court, if satisfied of an owner's good faith, shall enter no order of abatement as to that owner if the court finds that the owner:

(a) Had no knowledge of the existence of the nuisance or has been making reasonable efforts to abate the nuisance;

(b) Has not been guilty of any contempt of court in the proceedings; and

(c) Will make best efforts to immediately abate any nuisance that may exist and prevent it from being a nuisance for a period of one year thereafter.

(4) Except for an order of abatement entered based on the manufacture of a controlled substance, if an order of abatement has been entered and an owner subsequently meets the requirements of this section, the order of abatement shall be canceled as to that owner.

(5) If the court enters an order under this section on the basis that the property was used for the manufacture of a controlled substance, the court shall send a copy of the order to the Assistant Director for Health. The assistant director or the director's designee shall declare the property to be an illegal drug manufacturing site for purposes of ORS 453.855 to 453.912. An order of the court under this section shall not be canceled until the assistant director or the director's designee determines the property to be fit for use. Upon determining the property to be fit for use, the assistant director or designee shall notify the court, which shall cancel the abatement order.

SECTION 4. ORS 105.585 is amended to read:

105.585. (1) Any costs associated with securing the property under ORS [105.560] 105.550 to 105.600 shall constitute a lien against the property declared to be a nuisance from the time a notice specifying the costs is filed of record. A lien created by ORS [105.560] 105.550 to 105.600 is prior and superior to all other liens, mortgages and encumbrances against the property upon which the lien is imposed which attached to the property after any lien imposed by ORS [105.560] 105.550 to 105.600.

(2) A notice of pendency of an action may be filed pursuant to ORS 93.740 with respect to any action filed under ORS [105.560] 105.550 to 105.600.

[(3) Any prevailing party may be entitled to reasonable attorney fees.]

SECTION 5. ORS 105.595 is amended to read:

105.595. Except to the extent that a judgment has been entered in the action for damages under ORS 105.560 (2), the abatement of a nuisance under ORS [105.560] 105.550 to 105.600 does not prejudice the right of any person to recover damages for its past existence.

SECTION 6. ORS 105.550 is amended to read:

105.550. As used in ORS [105.555 to 105.565 and 105.575] 105.550 to 105.600, unless the context requires otherwise:

(1) "Of record" means:

(a) With regard to real property, that an owner's interest is recorded in the public records provided for by Oregon statutes where the owner's interest must be recorded to perfect a lien or security interest or provide constructive notice of the owner's interest; or

(b) With regard to personal property, that an owner's interest is recorded in the public records under any applicable state or federal law where the owner's interest must be recorded to perfect a lien or security interest, or provide constructive notice of the owner's interest.

(2) "Owner" means a person having any legal or equitable interest in property, including, but not limited to, a purchaser, lienholder or holder of any security interest in such property.

(3) "Place" or "property" includes, but is not limited to, any premises, room, house, building or structure or any separate part or portion thereof whether permanent or not or the ground itself or any conveyance or any part or portion thereof.

SECTION 7. ORS 105.555 is amended to read:

105.555. (1) The following are declared to be nuisances and shall be enjoined and abated as provided in ORS [105.560, 105.565 and 105.575] 105.550 to 105.600:

(a) Any place that, as a regular course of business, is used for the purpose of prostitution and any place where acts of prostitution occur;

(b) Any place which is used and maintained for profit and for the purpose of gambling or a lottery, as defined in ORS 167.117, by any person, partnership or corporation organized for profit and wherein take place any of the acts or wherein are kept, stored or located any of the games, devices or things which are forbidden by or made punishable by ORS 167.117 to 167.164; and

(c) Any place where activity involving the unauthorized delivery, manufacture or possession of a controlled substance, as defined in ORS 475.005, occurs or any place wherein are kept, stored or located any of the devices, equipment, things or substances used for unauthorized delivery, manufacture or possession of a controlled substance. As used in this subsection "devices, equipment and things" does not include hypodermic syringes or needles. This subsection shall not apply to acts which constitute violations under ORS 475.992 (2)(b) and (4)(f).

(2) Nothing in ORS 105.550 to 105.600, 166.715 and 167.158 applies to property to the extent that the devices, equipment, things or substances that are used for delivery, manufacture or possession of a controlled substance are kept, stored or located in or on the property for the purpose of lawful sale or use of these items.

SECTION 8. ORS 105.575 is amended to read:

105.575. An action under ORS [105.560] 105.550 to 105.600 shall have precedence over all other actions, except prior matters of the same character, criminal proceedings and election contests.

SECTION 9. ORS 105.590 is amended to read:

105.590. An intentional violation of a restraining order, preliminary injunction or order of abatement under ORS [105.560] 105.550 to 105.600 is punishable as a contempt of court by a fine of not more than $1,000 which may not be waived, or by imprisonment for not more than six months or by both.

SECTION 10. ORS 453.882 is amended to read:

453.882. The owner of property that has been determined to be not fit for use pursuant to ORS [105.555, 431.175 and] 453.855 to 453.912 who allows such property to be used as if it were fit for use shall be considered to be maintaining a public nuisance subject to being enjoined or abated under ORS [105.570] 105.550 to 105.600.

SECTION 11. ORS 475A.075 is amended to read:

475A.075. A civil action in rem may be brought as provided in this section in any case in which forfeiture is sought. A civil action in rem must be brought if the property is real property, the property is in whole or part a manufactured dwelling as defined in ORS 446.003, the property is a floating home as defined in ORS 830.700 or if the property is subject to an interest in favor of any person known to have an interest, other than a person who engaged in prohibited conduct.

(1) If a forfeiting agency has commenced proceedings under ORS 475A.055, then an action shall be commenced by forfeiture counsel, within 15 days of receipt of a claim. If no proceedings have been commenced under ORS 475A.055, then the action shall be commenced by forfeiture counsel within 30 days of seizure. The property may be released by forfeiture counsel as provided in ORS 475A.045 (2).

(2) An action is commenced by filing a complaint. Responses to a complaint shall conform to the following procedure:

(a) A person claiming an interest in the property shall respond as provided in the Oregon Rules of Civil Procedure and, if a claim has not previously been filed, by filing a claim in the form set forth in ORS 475A.055 (3) with the court and posting a bond with the court. The bond shall be a cash bond in an amount equal to 10 percent of the value of the interest claimed by the person in the property. Upon good cause shown by motion and affidavit filed with the initial appearance, the court may waive or reduce the bond. Failure to file an appearance, claim and bond shall constitute a default. The bond shall be returned to the claimant upon the entry of a final determination on the claim.

(b) Notwithstanding the provisions of paragraph (a) of this subsection, a financial institution holding an interest in the seized property shall respond to a complaint with an affidavit establishing that the financial institution's interest in the property was acquired:

(A) In the regular course of business as a financial institution;

(B) For valuable consideration;

(D) In good faith and without intent to defeat the interest of any potential forfeiting agency; and

(E) With respect to personal property, prior to the seizure of the property, or with respect to real property, recorded prior to the recording of notice of the seizure of the real property in the mortgage records of the county in which the real property is located. Failure to file an affidavit shall constitute a default. The affidavit shall be filed within 30 days from the date of service.

(c) Notwithstanding the provisions of paragraph (a) of this subsection, any person, other than a financial institution, who transfers or conveys an interest in real property pursuant to a contract for transfer or conveyance of an interest in real property as defined in ORS 93.905 and who retains an interest in the real property, or any successor in interest, may respond to a complaint with an affidavit establishing that the person:

(A) Received the interest in return for valuable consideration or by way of devise or intestate succession;

(B) Had no knowledge at the time of transfer or conveyance of the prohibited conduct;

(D) Recorded the interest in the mortgage records of the county in which the real property is located prior to the recording of any notice of intent to seize or notice of seizure; and

(E) Continued to hold the interest without acquiescing in the prohibited conduct.

(d) For the purposes of paragraph (c) of this subsection, a person shall be considered to have acquiesced in prohibited conduct if the person knew of the prohibited conduct and knowingly failed to take reasonable action under the circumstances to terminate or avoid use of the property in the course of prohibited conduct. For purposes of this section, "reasonable action under the circumstances" includes, but is not limited to:

(A) Reporting the prohibited conduct to a police agency;

(B) Commencing action that will assert the rights of the affiant as to the property interest;

(D) Seeking an abatement order under the provisions of ORS 105.505 to 105.520, or under the provisions of ORS [105.555 to 105.565 and 105.575] 105.550 to 105.600, or under any ordinance or regulation allowing abatement of nuisances.

(e) The affidavit permitted by paragraph (c) of this subsection shall be filed within 30 days from the date of service of the summons and complaint. Failure to file an affidavit or to respond as set forth in paragraph (a) of this subsection shall constitute a default.

(f) In response to an affidavit filed pursuant to paragraph (c) of this subsection, the forfeiting agency may controvert any or all of the assertions made in the affidavit. The affidavit of the forfeiting agency shall be filed within 20 days of the filing of the affidavit filed under paragraph (c) of this subsection. The transferor, conveyor or successor in interest may respond, within five days of the filing of the affidavit of the forfeiting agency, with a supplemental affidavit limited to the matters stated in the affidavit of the forfeiting agency. If the forfeiting agency does not file an affidavit within the time allowed, the transferor, conveyor or successor in interest shall be considered a financial institution for all purposes under this chapter and ORS 167.243, 167.248, 205.246, 471.666, 475A.010, 475A.040, 475A.050 and 475A.135.

(g)(A) If the forfeiting agency files an affidavit under paragraph (f) of this subsection, the court shall determine from the affidavits whether there is a genuine issue of material fact with respect to the assertions of the transferor, conveyor or successor in interest.

(B) If the court determines that there is no genuine issue of material fact as to the truth of the assertions in the affidavit filed under paragraph (f) of this subsection, the transferor, conveyor or successor in interest shall be considered a financial institution for all purposes under this chapter and ORS 167.243, 167.248, 205.246, 471.666, 475A.010, 475A.040, 475A.050 and 475A.135. The court shall order the forfeiting agency to pay the costs and disbursements, including attorney fees, of the prevailing transferor, conveyor or successor in interest if the forfeiting agency does not prevail.

(C) If the court determines that there is a genuine issue of material fact as to the truth of the assertions in the affidavit filed pursuant to paragraph (f) of this subsection, the transferor, conveyor or successor in interest shall, within 15 days, respond as provided in paragraph (a) of this subsection. The court may order the transferor, conveyor or successor in interest to pay the attorney fees of the forfeiting agency that were incurred in contesting the affidavit of the transferor, conveyor or successor in interest if the court determines that the affidavit of the transferor, conveyor or successor in interest was frivolous.

(3) All persons known to have an interest in the property, including any claimant, shall be served with a true copy of the inventory of the property prepared pursuant to ORS 475A.035 and 475A.055, the summons and the complaint as provided in ORCP 5 and 7 D. Notice of the action shall be published as provided in ORCP 7 D(6)(b) to (d) unless notice has previously been published in accordance with ORS 475A.055 (1). In the event that a forfeiture involves a vehicle, and the notices required by this statute have been given, and substitute service on the claimant is required because personal service cannot be reasonably accomplished, service as authorized by ORCP 7 D(4) shall be sufficient to establish jurisdiction over a registered owner or operator of a vehicle. If the property is in whole or part a manufactured dwelling as defined in ORS 446.003 or a floating home as defined in ORS 830.700, the forfeiting agency shall, in addition to serving all persons known to have an interest in the property, record a notice of seizure containing a description of the manufactured dwelling or floating home in all public offices maintaining records that impart constructive notice of matters relating to manufactured dwellings or floating homes.

(4) All judicial proceedings under this chapter shall be governed by the Oregon Rules of Civil Procedure to the extent that they do not conflict with specific provisions of this chapter and ORS 167.243, 167.248, 205.246, 471.666, 475A.010, 475A.040, 475A.050 and 475A.135.

(5)(a) The filing of criminal charges related to any civil proceeding for forfeiture may, upon motion of forfeiture counsel or the district attorney or upon motion on behalf of defendant in a related criminal proceeding, stay the civil forfeiture proceeding until the trial, plea or dismissal of the related criminal proceeding. A motion for stay on behalf of the defendant in a related criminal proceeding shall constitute a waiver of double jeopardy by the defendant as to the civil forfeiture proceeding and any related criminal proceeding. Pursuant to subsection (6) of this section, a civil forfeiture proceeding stayed under this paragraph may be consolidated for trial or other resolution with any related criminal proceeding.

(b) The court may stay the civil forfeiture proceeding upon motion of a party and good cause shown. Good cause may include a reasonable fear on the part of a claimant that the claimant could be prosecuted for conduct arising out of the same factual situation which gave rise to the seizure of property. Pursuant to subsection (6) of this section, a civil forfeiture proceeding stayed under this paragraph may be consolidated for trial or other resolution with any related criminal proceeding.

(6) Notwithstanding any stay entered pursuant to subsection (5)(a) or (b) of this section, an action pursuant to this section may be consolidated with any other action pursuant to this section relating to the same property or parties on motion by any party in any related action. Upon motion by the state or a political subdivision of the state, or any criminal defendant who is also a claimant, a civil forfeiture proceeding under this section may be consolidated for trial or other resolution with any related criminal proceeding. Trial or other resolution of the civil forfeiture action shall immediately follow the related criminal trial or other resolution, shall be part of the same proceeding and shall be heard by the same trier of fact. Any objection by the defendant to the consolidation or any motion by the defendant to sever the related criminal case from the civil proceeding for forfeiture shall constitute a waiver of double jeopardy as to any related criminal action and the civil forfeiture proceeding.

(7) The action shall be commenced and tried:

(a) In the case of real property, in the circuit court in a county in which the property is situated; or

(b) In all other cases, in the circuit court of the county in which the property was seized or the county in which any part of the prohibited conduct took place.

SECTION 12. ORS 105.570 is repealed.

Approved by the Governor May 3, 1999

Filed in the office of Secretary of State May 3, 1999

Effective date October 23, 1999

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