Chapter 0391

Chapter 391 Oregon Laws 2005

AN ACT

HB 2524

Relating to residential tenancies; creating new provisions; amending ORS 18.618, 18.690, 18.845, 90.140, 90.160, 90.243, 90.260, 90.265, 90.300, 90.302, 90.315, 90.322, 90.390, 90.415, 90.425, 90.429, 90.510, 90.545, 90.630, 90.632, 92.840, 105.115, 105.124, 105.137, 105.139, 105.148, 105.149 and 105.156; and repealing ORS 90.400.

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

SECTION 1. ORS 18.618 is amended to read:

18.618. (1) Notwithstanding ORS 18.615, the following are not garnishable property:

(a) Equitable interests.

(b) Property in the custody of the law.

(d) Property in the possession of a personal representative that constitutes the subject matter of a trust contained in a duly probated will of a decedent.

(e) If a residential landlord is the garnishee, property in the possession of a residential landlord that is held as a security deposit or prepaid rent under ORS 90.300.

(2) If a garnishee holds any property described in subsection (1) of this section, the garnishee must note in the garnishee response required by ORS 18.680 that the garnishee holds the property, but may not deliver the property to the garnishor.

[(2)] (3) Notwithstanding any other provision of law, if a voluntary or involuntary bankruptcy petition has been filed by or on behalf of the debtor after a writ of garnishment could be issued under ORS 18.605, the garnishment of any property of the debtor in the garnishee’s possession, control or custody is stayed pursuant to section 362 of the United States Bankruptcy Code (11 U.S.C. 101 to 1330).

SECTION 2. ORS 18.845 is amended to read:

18.845. A notice of exemptions form must be in substantially the form set forth in this section. Nothing in the notice form described in this section is intended to expand or restrict the law relating to exempt property. A determination as to whether property is exempt from execution, attachment and garnishment must be made by reference to other law. The form provided in this section may be modified to provide more information or to update the notice based on subsequent changes in exemption laws.

______________________________________________________________________________

NOTICE OF EXEMPT PROPERTY

AND INSTRUCTIONS FOR

CHALLENGE TO GARNISHMENT

Property belonging to you may have been taken or held in order to satisfy a debt. The debt may be reflected in a judgment or in a warrant or order issued by a state agency. Important legal papers are enclosed.

YOU MAY BE ABLE TO GET YOUR PROPERTY BACK, SO READ THIS NOTICE CAREFULLY.

State and federal law specify that certain property may not be taken. Some of the property that you may be able to get back is listed below.

(1) Wages or a salary as described in ORS 18.375 and 18.385. Whichever of the following amounts is greater:

(a) 75 percent of your take-home wages; or

(b) $170 per workweek.

(2) Social Security benefits.

(3) Supplemental Security Income (SSI).

(4) Public assistance (welfare).

(5) Unemployment benefits.

(6) Disability benefits (other than SSI benefits).

(7) Workers’ compensation benefits.

(8) Exempt wages, Social Security benefits (other than SSI), welfare, unemployment benefits and disability benefits when placed in a checking or savings account (up to $7,500).

(9) Spousal support, child support or separate maintenance to the extent reasonably necessary for your support or the support of any of your dependents.

(10) A homestead (home, farm, manufactured dwelling or houseboat) if you live in it, to the value of $20,000 ($23,000 for a manufactured dwelling with land included; $25,000 for any other homestead with land included) or proceeds from its sale for one year.

(11) Household goods, furniture, radios, a television set and utensils with a combined value not to exceed $3,000.

*(12) An automobile, truck, trailer or other vehicle with a value not to exceed $1,700.

*(13) Tools, implements, apparatus, team, harness or library that are necessary to carry on your occupation, with a combined value not to exceed $3,000.

*(14) Books, pictures and musical instruments with a combined value not to exceed $600.

*(15) Wearing apparel, jewelry and other personal items with a combined value not to exceed $1,800.

(16) Domestic animals and poultry for family use with a combined value not to exceed $1,000 and their food for 60 days.

(17) Provisions (food) and fuel for your family for 60 days.

(18) One rifle or shotgun and one pistol. The combined value of all firearms claimed as exempt may not exceed $1,000.

(19) Public or private pensions.

(20) Veterans’ benefits and loans.

(21) Medical assistance benefits.

(22) Health insurance proceeds and disability proceeds of life insurance policies.

(23) Cash surrender value of life insurance policies not payable to your estate.

(24) Federal annuities.

(25) Other annuities to $250 per month (excess over $250 per month is subject to the same exemption as wages).

(26) Professionally prescribed health aids for you or any of your dependents.

*(27) Elderly rental assistance allowed pursuant to ORS 310.635.

(28) Your right to receive, or property traceable to:

(a) An award under any crime victim reparation law.

(b) A payment or payments, not exceeding a total of $10,000, on account of personal bodily injury suffered by you or an individual of whom you are a dependent.

(c) A payment in compensation of loss of future earnings of you or an individual of whom you are or were a dependent, to the extent reasonably necessary for your support and the support of any of your dependents.

(29) Amounts paid to you as an earned income tax credit under federal tax law.

*(30) Interest in personal property to the value of $400, but this cannot be used to increase the amount of any other exemption.

(31) Equitable interests in property.

(32) Security deposits or prepaid rent held by a residential landlord under ORS 90.300.

[(32)] (33) If the amount shown as owing on the Debt Calculation form exceeds the amount you actually owe to the creditor, the difference between the amount owed and the amount shown on the Debt Calculation form.

Note: If two or more people in your household owe the claim or judgment, each of them may claim the exemptions marked by an asterisk (*).

______________________________________________________________________________

SPECIAL RULES APPLY FOR DEBTS THAT ARE OWED FOR CHILD SUPPORT AND SPOUSAL SUPPORT. Some property that may not otherwise be taken for payment against the debt may be taken to pay for overdue support. For instance, Social Security benefits, workers’ compensation benefits, unemployment benefits, veterans’ benefits and pensions are normally exempt, but only 75 percent of a lump sum payment of these benefits is exempt if the debt is owed for a support obligation.

YOU MUST ACT PROMPTLY IF YOU WANT TO GET YOUR MONEY OR PROPERTY BACK. You may seek to reclaim your exempt property by doing the following:

(1) Fill out the Challenge to Garnishment form that you received with this notice.

(2) Mail or deliver the Challenge to Garnishment form to the court administrator at the address shown on the writ of garnishment. If you wish to claim wages or salary as exempt, you must mail or deliver the form within 120 days after you receive this notice. If you wish to claim that any other money or property is exempt, or claim that the property is not subject to garnishment, you must mail or deliver the form within 30 days after you receive this notice. You have the burden of showing that your challenge is made on time, so you should keep records showing when the challenge was mailed or delivered.

(3) The law only requires that the Garnishor hold the garnished money or property for 10 days before applying it to the Creditor’s use. You may be able to keep the property from being used by the Creditor by promptly following (1) and (2) above.

You should be prepared to explain your exemption in court. If you have any questions about the garnishment or the debt, you should see an attorney.

YOU MAY USE THE CHALLENGE TO GARNISHMENT FORM ONLY FOR THE FOLLOWING PURPOSES:

(1) To claim such exemptions from garnishment as are permitted by law.

(2) To assert that property is not garnishable property under ORS 18.618.

(3) To assert that the amount specified in the writ of garnishment as being subject to garnishment is greater than the total amount owed.

YOU MAY NOT USE THE CHALLENGE TO GARNISHMENT FORM TO CHALLENGE THE VALIDITY OF THE DEBT.

IF YOU FILE A CHALLENGE TO A GARNISHMENT IN BAD FAITH, YOU MAY BE SUBJECT TO PENALTIES IMPOSED BY THE COURT THAT COULD INCLUDE A FINE. Penalties that you could be subject to are listed in ORS 18.715.

When you file a Challenge to Garnishment form, the Garnishee may be required to make all payments under the garnishment to the court, and the Garnishor may be required to pay to the court all amounts received by the Garnishor that are subject to the challenge to the garnishment. The Garnishee and Garnishor are subject to penalties if they do not. For a complete explanation of their responsibilities, see ORS 18.705 and 18.708.

______________________________________________________________________________

SECTION 3. ORS 90.300 is amended to read:

90.300. (1) As used in this section, “security deposit” includes any last month’s rent deposit.

(2) Except as otherwise provided in this section, a landlord may require the payment of a security deposit. A security deposit or prepaid rent shall be held by the landlord for the tenant who is a party to the rental agreement. The claim of a tenant to the security deposit or prepaid rent shall be prior to the claim of any creditor of the landlord, including a trustee in bankruptcy. The holder of the landlord’s interest in the premises at the time of termination of the tenancy is responsible to the tenant for any security deposit or prepaid rent and is bound by this section.

(3)(a) A landlord may not change the rental agreement to require the payment of a new or increased security deposit during the first year after the tenancy has begun, except that an additional deposit may be required if the landlord and tenant agree to modify the terms and conditions of the rental agreement to permit a pet or for other cause and the additional deposit relates to that modification. This paragraph does not prevent the collection of a security deposit that was provided for under an initial rental agreement but remained unpaid at the time the tenancy began.

(b) If a landlord requires a new or increased security deposit after the first year of the tenancy, the landlord shall allow the tenant at least three months to pay that deposit.

(4) The landlord may claim all or part of the security deposit only if the security deposit was made for any or all of the purposes provided by subsection (5) of this section.

(5) The landlord may claim from the security deposit only the amount reasonably necessary:

(a) To remedy the tenant’s defaults in the performance of the rental agreement including, but not limited to, unpaid rent; and

(b) To repair damages to the premises caused by the tenant, not including ordinary wear and tear.

(6) A landlord may not require that a security deposit or prepaid rent [shall not] be required or forfeited to the landlord upon the failure of the tenant to maintain a tenancy for a minimum number of months in a month-to-month tenancy.

(7) Any last month’s rent deposit [shall] must be applied to the rent due for the last month of the tenancy:

(a) Upon either the landlord or tenant giving to the other a notice of termination, pursuant to this chapter, other than a notice of termination under [ORS 90.400 (2)] section 8 of this 2005 Act;

(b) Upon agreement by the landlord and tenant to terminate the tenancy; or

(8) Any portion of a last month’s rent deposit not applied as provided under subsection (7) of this section shall be accounted for and refunded as provided under subsections (10) to (12) of this section. Unless the tenant and landlord agree otherwise, a last month’s rent deposit shall not be applied to rent due for any period other than the last month of the tenancy. A last month’s rent deposit shall not operate to limit the amount of rent charged unless a written rental agreement provides otherwise.

(9) Upon termination of the tenancy, a landlord shall account for and refund to the tenant the unused balance of any prepaid rent not previously refunded to the tenant as required by ORS 90.380 and 105.120 (4)(b) or any other provision of this chapter, in the same manner as required for security deposits by this section. The landlord may claim from the remaining prepaid rent only the amount reasonably necessary to pay the tenant’s unpaid rent.

(10) In order to claim all or part of any prepaid rent or security deposit, within 31 days after the termination of the tenancy and delivery of possession the landlord shall give to the tenant a written accounting that states specifically the basis or bases of the claim. The landlord shall give a separate accounting for security deposits and for prepaid rent.

(11) The security deposit or prepaid rent or portion thereof not claimed in the manner provided by subsections (9) and (10) of this section shall be returned to the tenant not later than 31 days after the termination of the tenancy and delivery of possession to the landlord.

(12) The landlord shall give the written accounting as required by subsection (10) of this section or shall return the security deposit or prepaid rent as required by subsection (11) of this section by personal delivery or by first class mail.

(13) If a security deposit or prepaid rent secures a tenancy for a space for a tenant owned and occupied manufactured dwelling or floating home, whether or not in a facility, and the dwelling or home is abandoned as described in ORS 90.425 (2) or 90.675 (2), the 31-day period described in subsections (10) and (11) of this section commences on the earliest of:

(a) Waiver of the abandoned property process under ORS 90.425 [(24)] (25) or 90.675 (22);

(b) Removal of the manufactured dwelling or floating home from the rented space;

(c) Destruction or other disposition of the manufactured dwelling or floating home under ORS 90.425 (10)(b) or 90.675 (10)(b); or

(d) Sale of the manufactured dwelling or floating home pursuant to ORS 90.425 (10)(a) or 90.675 (10)(a).

(14) If the landlord fails to comply with subsection (11) of this section or if the landlord in bad faith fails to return all or any portion of any prepaid rent or security deposit due to the tenant under this chapter or the rental agreement, the tenant may recover the money due in an amount equal to twice the amount:

(a) Withheld without a written accounting under subsection (10) of this section; or

(b) Withheld in bad faith.

(15)(a) A security deposit or prepaid rent in the possession of the landlord is not garnishable property, as provided in ORS 18.618.

(b) If a security deposit or prepaid rent is delivered to a garnishor in violation of ORS 18.618 (2), the landlord that delivered the security deposit or prepaid rent to the garnishor shall allow the tenant at least 30 days after a copy of the garnishee response required by ORS 18.680 is delivered to the tenant under ORS 18.690 to restore the security deposit or prepaid rent. If the tenant fails to restore a security deposit or prepaid rent under the provisions of this paragraph before the tenancy terminates, and the landlord retains no security deposit or prepaid rent from the tenant after the garnishment, the landlord is not required to refund or account for the security deposit or prepaid rent under subsection (9) of this section.

[(15)] (16) This section does not preclude the landlord or tenant from recovering other damages under this chapter.

SECTION 4. The amendments to ORS 18.618, 18.845 and 90.300 by sections 1 to 3 of this 2005 Act apply only to writs of garnishment issued on or after the effective date of this 2005 Act.

SECTION 5. ORS 18.690 is amended to read:

18.690. (1) Except as provided in subsection (2) of this section, a garnishee who is required to deliver a garnishee response must mail or personally deliver:

(a) The original of the response to the garnishor;

(b) A copy of the response to the debtor; and

(c) A copy of the response to the court administrator for the court specified in the writ of garnishment as having authority over the writ.

(2) The garnishee shall not mail or personally deliver a copy of the garnishee response to the court administrator if:

(a) The garnishee discovers that a voluntary or involuntary bankruptcy petition has been filed by or on behalf of the debtor after the debt was adjudicated as provided in ORS 18.605, and the garnishee will not make payments or deliver property under the writ pursuant to ORS 18.618 [(2)] (3); or

(b) The garnishee does not employ the debtor and the garnishee has no property of the debtor in the garnishee’s possession, control or custody that is garnishable property.

(3) For the purpose of compliance with ORS 18.680, delivery of a garnishee response under this section is accomplished upon mailing or upon personal delivery of the response.

SECTION 6. Sections 7 to 12 and 31 of this 2005 Act are added to and made a part of ORS 90.100 to 90.459.

SECTION 7. (1) Except as provided in this chapter, after delivery of written notice a landlord may terminate the rental agreement for cause and take possession as provided in ORS 105.105 to 105.168, unless the tenant cures the violation as provided in this section.

(2) Causes for termination under this section are:

(a) Material violation by the tenant of the rental agreement. For purposes of this paragraph, material violation of the rental agreement includes, but is not limited to, the nonpayment of a late charge under ORS 90.260 or a utility or service charge under ORS 90.315.

(b) Material violation by the tenant of ORS 90.325.

(c) Failure by the tenant to pay rent.

(3) The notice must:

(a) Specify the acts and omissions constituting the violation;

(b) Except as provided in subsection (5)(a) of this section, state that the rental agreement will terminate upon a designated date not less than 30 days after delivery of the notice; and

(c) If the tenant can cure the violation as provided in subsection (4) of this section, state that the violation can be cured, describe at least one possible remedy to cure the violation and designate the date by which the tenant must cure the violation.

(4)(a) If the violation described in the notice can be cured by the tenant by a change in conduct, repairs, payment of money or otherwise, the rental agreement does not terminate if the tenant cures the violation by the designated date. The designated date must be:

(A) At least 14 days after delivery of the notice; or

(B) If the violation is conduct that was a separate and distinct act or omission and is not ongoing, no earlier than the date of delivery of the notice as provided in ORS 90.155. For purposes of this paragraph, conduct is ongoing if the conduct is constant or persistent or has been sufficiently repetitive over time that a reasonable person would consider the conduct to be ongoing.

(b) If the tenant does not cure the violation, the rental agreement terminates as provided in the notice.

(5)(a) If the cause of a written notice delivered under subsection (1) of this section is substantially the same act or omission that constituted a prior violation for which notice was given under this section within the previous six months, the designated termination date stated in the notice must be not less than 10 days after delivery of the notice and no earlier than the designated termination date stated in the previously given notice. The tenant does not have a right to cure this subsequent violation.

(b) A landlord may not terminate a rental agreement under this subsection if the only violation is a failure to pay the current month’s rent.

(6) When a tenancy is a week-to-week tenancy, the notice period in:

(a) Subsection (3)(b) of this section changes from 30 days to seven days;

(b) Subsection (4)(a)(A) of this section changes from 14 days to four days; and

(c) Subsection (5)(a) of this section changes from 10 days to four days.

(7) The termination of a tenancy for a manufactured dwelling or floating home space in a facility under ORS 90.505 to 90.840 is governed by ORS 90.630 and not by this section.

SECTION 8. The landlord may terminate the rental agreement for nonpayment of rent and take possession as provided in ORS 105.105 to 105.168, as follows:

(1) When the tenancy is a week-to-week tenancy, by delivering to the tenant at least 72 hours’ written notice of nonpayment and the landlord’s intention to terminate the rental agreement if the rent is not paid within that period. The landlord shall give this notice no sooner than on the fifth day of the rental period, including the first day the rent is due.

(2) For all tenancies other than week-to-week tenancies, by delivering to the tenant:

(a) At least 72 hours’ written notice of nonpayment and the landlord’s intention to terminate the rental agreement if the rent is not paid within that period. The landlord shall give this notice no sooner than on the eighth day of the rental period, including the first day the rent is due; or

(b) At least 144 hours’ written notice of nonpayment and the landlord’s intention to terminate the rental agreement if the rent is not paid within that period. The landlord shall give this notice no sooner than on the fifth day of the rental period, including the first day the rent is due.

(3) The notice described in this section must also specify the amount of rent that must be paid and the date and time by which the tenant must pay the rent to cure the nonpayment of rent.

(4) Payment by a tenant who has received a notice under this section is timely if mailed to the landlord within the period of the notice unless:

(a) The notice is served on the tenant:

(A) By personal delivery as provided in ORS 90.155 (1)(a); or

(B) By first class mail and attachment as provided in ORS 90.155 (1)(c);

(b) A written rental agreement and the notice expressly state that payment is to be made at a specified location that is either on the premises or at a place where the tenant has made all previous rent payments in person; and

(c) The place so specified is available to the tenant for payment throughout the period of the notice.

SECTION 9. (1) Except as provided in subsection (2) of this section, after at least 24 hours’ written notice specifying the acts and omissions constituting the cause and specifying the date and time of the termination, the landlord may terminate the rental agreement and take possession as provided in ORS 105.105 to 105.168, if:

(a) The tenant, someone in the tenant’s control or the tenant’s pet seriously threatens to inflict substantial personal injury, or inflicts any substantial personal injury, upon a person on the premises other than the tenant;

(b) The tenant or someone in the tenant’s control recklessly endangers a person on the premises other than the tenant by creating a serious risk of substantial personal injury;

(c) The tenant, someone in the tenant’s control or the tenant’s pet inflicts any substantial personal injury upon a neighbor living in the immediate vicinity of the premises;

(d) The tenant or someone in the tenant’s control intentionally inflicts any substantial damage to the premises or the tenant’s pet inflicts substantial damage to the premises on more than one occasion;

(e)(A) The tenant intentionally provided substantial false information on the application for the tenancy within the past year;

(B) The false information was with regard to a criminal conviction of the tenant that would have been material to the landlord’s acceptance of the application; and

(C) The landlord terminates the rental agreement within 30 days after discovering the falsity of the information; or

(f) The tenant, someone in the tenant’s control or the tenant’s pet commits any act that is outrageous in the extreme, on the premises or in the immediate vicinity of the premises. For purposes of this paragraph, an act is outrageous in the extreme if the act is not described in paragraphs (a) to (e) of this subsection, but is similar in degree and is one that a reasonable person in that community would consider to be so offensive as to warrant termination of the tenancy within 24 hours, considering the seriousness of the act or the risk to others. An act that is outrageous in the extreme is more extreme or serious than an act that warrants a 30-day termination under section 7 of this 2005 Act. Acts that are “outrageous in the extreme” include, but are not limited to, the following acts by a person:

(A) Prostitution or promotion of prostitution, as described in ORS 167.007 and 167.012;

(B) Manufacture, delivery or possession of a controlled substance, as described in ORS 475.005, but not including:

(i) The medical use of marijuana in compliance with ORS 475.300 to 475.346;

(ii) Possession of, or delivery for no consideration of, less than one avoirdupois ounce of marijuana as described in ORS 475.992 (2)(b) or (4)(f); or

(iii) Possession of prescription drugs;

(C) Intimidation, as described in ORS 166.155 and 166.165; or

(D) Burglary as described in ORS 164.215 and 164.225.

(2) If the cause for a termination notice given pursuant to subsection (1) of this section is based upon the acts of the tenant’s pet, the tenant may cure the cause and avoid termination of the tenancy by removing the pet from the premises prior to the end of the notice period. The notice must describe the right of the tenant to cure the cause. If the tenant returns the pet to the premises at any time after having cured the violation, the landlord, after at least 24 hours’ written notice specifying the subsequent presence of the offending pet, may terminate the rental agreement and take possession as provided in ORS 105.105 to 105.168. The tenant does not have a right to cure this subsequent violation.

(3) For purposes of subsection (1) of this section, someone is in the tenant’s control if that person enters or remains on the premises with the tenant’s permission or consent after the tenant reasonably knows or should know of that person’s act or likelihood to commit any act of the type described in subsection (1) of this section.

(4) An act can be proven to be outrageous in the extreme even if the act is one that does not violate a criminal statute. Notwithstanding the references to criminal statutes in subsection (1)(f) of this section, the landlord’s burden of proof in an action for possession under subsection (1) of this section is the civil standard of proof by a preponderance of the evidence.

(5) If a good faith effort by a landlord to terminate the tenancy under subsection (1)(f) of this section and to recover possession of the rental unit under ORS 105.105 to 105.168 fails by decision of the court, the landlord may not be found in violation of any state statute or local ordinance requiring the landlord to remove that tenant upon threat of fine, abatement or forfeiture as long as the landlord continues to make a good faith effort to terminate the tenancy.

SECTION 10. (1) If a tenant living for less than two years in drug and alcohol free housing uses, possesses or shares alcohol, illegal drugs, controlled substances or prescription drugs without a medical prescription, the landlord may deliver a written notice to the tenant terminating the tenancy for cause and take possession as provided in ORS 105.105 to 105.168. The notice must specify the acts constituting the drug or alcohol violation and state that the rental agreement will terminate in not less than 48 hours after delivery of the notice, at a specified date and time. The notice must also state that the tenant can cure the drug or alcohol violation by a change in conduct or otherwise within 24 hours after delivery of the notice.

(2) If the tenant cures the violation within the 24-hour period, the rental agreement does not terminate. If the tenant does not cure the violation within the 24-hour period, the rental agreement terminates as provided in the notice.

(3) If substantially the same act that constituted a prior drug or alcohol violation of which notice was given reoccurs within six months, the landlord may terminate the rental agreement upon at least 24 hours’ written notice specifying the violation and the date and time of termination of the rental agreement. The tenant does not have a right to cure this subsequent violation.

SECTION 11. Except as provided in this chapter:

(1) A landlord may pursue any one or more of the remedies set forth in ORS 90.405 and sections 7, 8, 9, 10 and 12 of this 2005 Act, simultaneously or sequentially.

(2) In addition to the remedies provided in sections 7, 8, 9 and 10 of this 2005 Act, a landlord may recover damages and obtain injunctive relief for any noncompliance by the tenant with the rental agreement or ORS 90.325 or 90.740.

SECTION 12. (1) If an unauthorized person is in possession of the premises, after at least 24 hours’ written notice specifying the cause and the date and time by which the person must vacate, a landlord may take possession as provided in ORS 105.105 to 105.168 if:

(a) The tenant has vacated the premises;

(b) The rental agreement with the tenant prohibited subleasing or allowing another person to occupy the premises without the written permission of the landlord; and

(c) The landlord has not knowingly accepted rent from the person in possession of the premises.

(2) Service of notice under this section does not create a right of tenancy for the person in possession of the premises.

SECTION 13. ORS 90.140 is amended to read:

90.140. (1) A landlord may require or accept the following types of payments:

(a) Applicant screening charges, pursuant to ORS 90.295;

(b) Deposits to secure the execution of a rental agreement, pursuant to ORS 90.297;

(d) Fees, pursuant to ORS 90.302;

(e) Rent, as defined in ORS 90.100;

(f) Prepaid rent, as defined in ORS 90.100;

(g) Utility or service charges, pursuant to ORS 90.315 (4) or 90.510 (8);

(h) Late charges or fees, pursuant to ORS 90.260; and

(i) Damages, for noncompliance with a rental agreement or ORS 90.325, [pursuant to ORS 90.400 (11)] under section 11 of this 2005 Act or as provided elsewhere in this chapter.

(2) A tenant who requests a writing that evidences the tenant’s payment is entitled to receive that writing from the landlord as a condition for making the payment. The writing may be a receipt, statement of the tenant’s account or other acknowledgment of the tenant’s payment. The writing must include the amount paid, the date of payment and information identifying the landlord or the rental property. If the tenant makes the payment by mail, deposit or a method other than in person and requests the writing, the landlord shall within a reasonable time provide the tenant with the writing in a manner consistent with ORS 90.150.

SECTION 14. ORS 90.160 is amended to read:

90.160. (1) Notwithstanding ORCP 10 and not including the seven-day and four-day waiting periods provided in [ORS 90.400 (2)] section 8 of this 2005 Act, where there are references in this chapter to periods and notices based on a number of days, those days shall be calculated by consecutive calendar days, not including the initial day of service, but including the last day until midnight of that last day. Where there are references in this chapter to periods or notices based on a number of hours, those hours shall be calculated in consecutive clock hours, beginning immediately upon service.

(2) Notwithstanding subsection (1) of this section, for 72-hour or 144-hour nonpayment notices under [ORS 90.400 (2)] section 8 of this 2005 Act that are served pursuant to ORS 90.155 (1)(c), the time period described in subsection (1) of this section begins at 11:59 p.m. the day the notice is both mailed and attached to the premises. The time period shall end 72 hours or 144 hours, as the case may be, after the time started to run at 11:59 p.m.

SECTION 15. ORS 90.243 is amended to read:

90.243. (1) A dwelling unit qualifies as drug and alcohol free housing if:

(a)(A) For premises consisting of more than eight dwelling units, the dwelling unit is one of at least eight contiguous dwelling units on the premises that are designated by the landlord as drug and alcohol free housing dwelling units and that are each occupied or held for occupancy by at least one tenant who is a recovering alcoholic or drug addict and is participating in a program of recovery; or

(B) For premises consisting of eight or fewer dwelling units, the dwelling unit is one of at least four contiguous dwelling units on the premises that are designated by the landlord as drug and alcohol free housing dwelling units and that are each occupied or held for occupancy by at least one tenant who is a recovering alcoholic or drug addict and is participating in a program of recovery;

(b) The landlord is a nonprofit corporation incorporated pursuant to ORS chapter 65 or a housing authority created pursuant to ORS 456.055 to 456.235;

(A) A drug and alcohol free environment, covering all tenants, employees, staff, agents of the landlord and guests;

(B) Monitoring of the tenants for compliance with the requirements described in paragraph (d) of this subsection;

(D) Access to a specified program of recovery; and

(d) The rental agreement for the designated drug and alcohol free housing dwelling unit is in writing and includes the following provisions:

(A) That the dwelling unit is designated by the landlord as a drug and alcohol free housing dwelling unit;

(B) That the tenant may not use, possess or share alcohol, illegal drugs, controlled substances or prescription drugs without a medical prescription, either on or off the premises;

(C) That the tenant may not allow the tenant’s guests to use, possess or share alcohol, illegal drugs, controlled substances or prescription drugs without a medical prescription, on the premises;

(D) That the tenant shall participate in a program of recovery, which specific program is described in the rental agreement;

(E) That on at least a quarterly basis the tenant shall provide written verification from the tenant’s program of recovery that the tenant is participating in the program of recovery and that the tenant has not used alcohol or illegal drugs;

(F) That the landlord has the right to require the tenant to take a test for drug or alcohol usage promptly and at the landlord’s discretion and expense; and

(G) That the landlord has the right to terminate the tenant’s tenancy in the drug and alcohol free housing under ORS 90.630 or section 7 or 10 of this 2005 Act for noncompliance with the requirements described in this paragraph[, pursuant to ORS 90.400 (1) and (9) or 90.630].

(2) A dwelling unit qualifies as drug and alcohol free housing despite the premises not having the minimum number of qualified dwelling units required by subsection (1)(a) of this section if:

(a) The premises are occupied but have not previously qualified as drug and alcohol free housing;

(b) The landlord designates certain dwelling units on the premises as drug and alcohol free dwelling units;

(c) The number of designated drug and alcohol free housing dwelling units meets the requirement of subsection (1)(a) of this section;

(d) When each designated dwelling unit becomes vacant, the landlord rents that dwelling unit to, or holds that dwelling unit for occupancy by, at least one tenant who is a recovering alcoholic or drug addict and is participating in a program of recovery and the landlord meets the other requirements of subsection (1) of this section; and

(e) The dwelling unit is one of the designated drug and alcohol free housing dwelling units.

(3) The failure by a tenant to take a test for drug or alcohol usage as requested by the landlord pursuant to subsection (1)(d)(F) of this section may be considered evidence of drug or alcohol use.

(4) As used in this section, “program of recovery” means a verifiable program of counseling and rehabilitation treatment services, including a written plan, to assist recovering alcoholics or drug addicts to recover from their addiction to alcohol or illegal drugs while living in drug and alcohol free housing. A “program of recovery” includes Alcoholics Anonymous, Narcotics Anonymous and similar programs.

SECTION 16. ORS 90.260 is amended to read:

90.260. (1) A landlord may impose a late charge or fee, however designated, only if:

(a) The rent payment is not received by the fourth day of the weekly or monthly rental period for which rent is payable; and

(b) There exists a written rental agreement that specifies:

(A) The tenant’s obligation to pay a late charge on delinquent rent payments;

(B) The type and amount of the late charge, as described in subsection (2) of this section; and

(2) The amount of any late charge [shall] may not exceed:

(a) A reasonable flat amount, charged once per rental period. “Reasonable amount” means the customary amount charged by landlords for that rental market;

(b) A reasonable amount, charged on a per-day basis, beginning on the fifth day of the rental period for which rent is delinquent. This daily charge may accrue every day thereafter until the rent, not including any late charge, is paid in full, through that rental period only. The per-day charge may not exceed six percent of the amount described in paragraph (a) of this subsection; or

(c) Five percent of the periodic rent payment amount, charged once for each succeeding five-day period, or portion thereof, for which the rent payment is delinquent, beginning on the fifth day of that rental period and continuing and accumulating until that rent payment, not including any late charge, is paid in full, through that rental period only.

(3) In periodic tenancies, a landlord may change the type or amount of late charge by giving 30 days’ written notice to the tenant.

(4) A landlord [shall] may not deduct a previously imposed late charge from a current or subsequent rental period rent payment, thereby making that rent payment delinquent for imposition of a new or additional late charge or for termination of the tenancy for nonpayment [pursuant to ORS 90.400 (2)] under section 8 of this 2005 Act.

(5) A landlord may charge simple interest on an unpaid late charge at the rate allowed for judgments pursuant to ORS 82.010 (2) and accruing from the date the late charge is imposed.

(6) Nonpayment of a late charge alone [shall not constitute] is not grounds for termination of a rental agreement for nonpayment of rent [pursuant to ORS 90.400 (2)] under section 8 of this 2005 Act, but [shall constitute] is grounds for termination of a rental agreement for cause [pursuant to ORS 90.400 (1) or 90.630 (1)] under ORS 90.630 (1) or section 7 of this 2005 Act. A landlord may note the imposition of a late charge on a notice of nonpayment of rent [pursuant to ORS 90.400 (2)] under section 8 of this 2005 Act, so long as the notice states or otherwise makes clear that the tenant may cure the nonpayment notice by paying only the delinquent rent, not including any late charge, within the allotted time.

(7) A late charge includes an increase or decrease in the regularly charged periodic rent payment imposed because a tenant does or does not pay that rent by a certain date.

SECTION 17. ORS 90.265 is amended to read:

90.265. (1) An alternative energy device installed in a dwelling unit by a tenant with the landlord’s written permission is not a fixture in which the landlord has a legal interest, except as otherwise expressly provided in a written agreement between the landlord and tenant.

(2) As a condition to a grant of written permission referred to in subsection (1) of this section, a landlord may require a tenant to do one or more of the following:

(a) Provide a waiver of the landlord’s liability for any injury to the tenant or other installer resulting from the tenant’s or installer’s negligence in the installation of the alternative energy device;

(b) Secure a waiver of the right to a lien against the property of the landlord from each contractor, subcontractor, laborer and material supplier who would obtain the right to a lien when the tenant installs or causes the installation of the alternative energy device; or

(c) Post a bond or pay a deposit in an amount not to exceed the cost of restoring the premises to its condition at the time of installation of the alternative energy device.

(3) Nothing in this section:

(a) Authorizes the installation of an alternative energy device in a dwelling unit without the landlord’s written permission; or

(b) Limits a landlord’s right to recover damages and obtain injunctive relief as provided in [ORS 90.400 (11)] section 11 of this 2005 Act.

(4) As used in this section, “alternative energy device” has the meaning given that term in ORS 469.160.

SECTION 18. ORS 90.302 is amended to read:

90.302. (1) Except as specifically provided otherwise in this chapter, a landlord may require the payment of a fee, if the fee is related to and designated as being charged for a specific reasonably anticipated landlord expense. A landlord shall provide a receipt for the fee, and the receipt or a written rental agreement shall describe the anticipated landlord expense to be covered by the fee and describe the landlord’s duties under subsection (4) of this section.

(2) Except as provided in subsection (3) of this section, a landlord [shall] may not charge a fee more than once, at the beginning of or during the tenancy.

(3) A landlord may charge a fee more than once, at the beginning of or during the tenancy, for:

(a) A late rent payment, pursuant to ORS 90.260;

(b) A dishonored check, pursuant to ORS 30.701 (5);

(c) Removal or tampering with a properly functioning smoke alarm or smoke detector, as provided in ORS 90.325 (7), if a written rental agreement provides for a fee for that removal or tampering; and

(d) Any other noncompliance by the tenant with a written rental agreement that provides for a fee for that noncompliance, provided that the fee [shall] may not be excessive.

(4) A landlord [shall] may not be required to account for or return to the tenant any fee. Upon termination of a tenancy and delivery of possession, a landlord shall first apply any fee to the related landlord expense as reasonably assessed against the tenant, before applying the tenant’s security deposit, if any, to that expense.

(5) Nonpayment of a fee [shall not constitute] is not grounds for termination of a rental agreement for nonpayment of rent [pursuant to ORS 90.400 (2)] under section 8 of this 2005 Act, but [shall constitute] is grounds for termination of a rental agreement for cause [pursuant to ORS 90.400 (1) or 90.630 (1)] under ORS 90.630 (1) or section 7 of this 2005 Act.

(6) This section [shall] does not apply to attorney fees awarded pursuant to ORS 90.255 or to applicant screening charges paid pursuant to ORS 90.295.

SECTION 19. ORS 90.315 is amended to read:

90.315. (1) As used in this section, “utility or service” includes but is not limited to electricity, natural or liquid propane gas, oil, water, hot water, heat, air conditioning, cable television, direct satellite or other video subscription service, Internet access or usage, sewer service and garbage collection and disposal.

(2) The landlord shall disclose to the tenant in writing at or before the commencement of the tenancy any utility or service that the tenant pays directly to a utility or service provider that benefits, directly, the landlord or other tenants. A tenant’s payment for a given utility or service benefits the landlord or other tenants if the utility or service is delivered to any area other than the tenant’s dwelling unit.

(3) If the landlord knowingly fails to disclose those matters required under subsection (2) of this section, the tenant may recover twice the actual damages sustained or one month’s rent, whichever is greater.

(4)(a) Except for tenancies covered by ORS 90.505 to 90.840, if a written rental agreement so provides, a landlord may require a tenant to pay to the landlord a utility or service charge that has been billed by a utility or service provider to the landlord for utility or service provided directly to the tenant’s dwelling unit or to a common area available to the tenant as part of the tenancy. A utility or service charge that shall be assessed to a tenant for a common area must be described in the written rental agreement separately and distinctly from such a charge for the tenant’s dwelling unit. Unless the method of allocating the charges to the tenant is described in the tenant’s written rental agreement, the tenant may require that the landlord give the tenant a copy of the provider’s bill as a condition of paying the charges.

(b) A utility or service charge shall include only the value or cost of the utility or service as billed to the landlord by the provider as described in this subsection, except that a landlord may add an additional amount to that value or cost if:

(A) The utility or service charge to which the additional amount is added is for cable television, direct satellite or other video subscription service or for Internet access or usage;

(B) The additional amount added to the utility or service charge of each tenant is not more than 10 percent of the charge to that tenant for cable television, direct satellite or other video subscription service or Internet access or usage;

(C) The total of the utility or service charge plus the additional amount is less than the typical periodic cost that the tenant would incur if the tenant contracted for the cable television, direct satellite or other video subscription service or the Internet access or usage directly with the provider; and

(D) The written rental agreement providing for the utility or service charge describes the additional amount separately and distinctly from the charge itself and any bill or notice from the landlord to the tenant regarding the charge lists the additional amount separately and distinctly from the utility or service charge.

(c) A landlord [shall] may not require an existing tenant to modify a rental agreement, or terminate the tenancy of the tenant for refusing to modify a rental agreement, to obligate the tenant to pay an additional amount for cable television, direct satellite or other video subscription service or Internet access or usage as provided in paragraph (b) of this subsection.

(d) A utility or service charge, including any additional amount added pursuant to paragraph (b) of this subsection, [shall not be considered to be] is not rent or a fee. Nonpayment of a utility or service charge [shall not constitute] is not grounds for termination of a rental agreement for nonpayment of rent [pursuant to ORS 90.400 (2), but shall constitute] under section 8 of this 2005 Act but is grounds for termination of a rental agreement for cause [pursuant to ORS 90.400 (1)] under section 7 of this 2005 Act.

(e) If a landlord fails to comply with paragraph (a), (b) or (c) of this subsection, the tenant may recover from the landlord an amount equal to one month’s periodic rent or twice the amount wrongfully charged to the tenant, whichever is greater.

(5)(a) If a tenant, under the rental agreement, is responsible for a utility or service and is unable to obtain the service prior to moving into the premises due to a nonpayment of an outstanding amount due by a previous tenant or the owner, the tenant may either:

(A) Pay the outstanding amount and deduct the amount from the rent;

(B) Enter into a mutual agreement with the landlord to resolve the lack of service; or

(b) If the tenancy terminates, the landlord shall return all moneys paid by the tenant as deposits, rent or fees within four days after termination.

(6) If a tenant, under the rental agreement, is responsible for a utility or service and is unable to obtain the service after moving into the premises due to a nonpayment of an outstanding amount due by a previous tenant or the owner, the tenant may either:

(a) Pay the outstanding amount and deduct the amount from the rent; or

(b) Terminate the rental agreement by giving the landlord actual notice 72 hours prior to the date of termination and the reason for the termination. The tenancy [shall] does not terminate if the landlord restores service or the availability of service during the 72 hours. If the tenancy terminates, the tenant may recover actual damages from the landlord resulting from the shutoff and the landlord shall return:

(A) Within four days after termination, all rent and fees; and

(B) All of the security deposit owed to the tenant under ORS 90.300.

(7) If a landlord, under the rental agreement, is responsible for a utility or service and the utility or service is shut off due to a nonpayment of an outstanding amount, the tenant may either:

(a) Pay the outstanding balance and deduct the amount from the rent; or

(b) Terminate the rental agreement by giving the landlord actual notice 72 hours prior to the date of termination and the reason for the termination. The tenancy [shall] does not terminate if the landlord restores service during the 72 hours. If the tenancy terminates, the tenant may recover actual damages from the landlord resulting from the shutoff and the landlord shall return:

(A) Within four days after termination, all rent prepaid for the month in which the termination occurs prorated from the date of termination or the date the tenant vacates the premises, whichever is later, and any other prepaid rent; and

(B) All of the security deposit owed to the tenant under ORS 90.300.

(8) If a landlord fails to return to the tenant the moneys owed as provided in subsection (5), (6) or (7) of this section, the tenant shall be entitled to twice the amount wrongfully withheld.

(9) This section does not preclude the tenant from pursuing any other remedies under this chapter.

SECTION 20. ORS 90.322 is amended to read:

90.322. (1) A landlord or, to the extent provided in this section, a landlord’s agent may enter into the tenant’s dwelling unit or any portion of the premises under the tenant’s exclusive control in order to inspect the premises, make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, perform agreed yard maintenance or grounds keeping or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers or contractors. The right of access of the landlord or landlord’s agent is limited as follows:

(a) A landlord or landlord’s agent may enter upon the premises under the tenant’s exclusive control not including the dwelling unit without consent of the tenant and without notice to the tenant, for the purpose of serving notices required or permitted under this chapter, the rental agreement or any provision of applicable law.

(b) In case of an emergency, a landlord may enter the dwelling unit or any portion of the premises under a tenant’s exclusive control without consent of the tenant, without notice to the tenant and at any time. “Emergency” includes but is not limited to a repair problem that, unless remedied immediately, is likely to cause serious damage to the premises. If a landlord makes an emergency entry in the tenant’s absence, the landlord shall give the tenant actual notice within 24 hours after the entry, and the notice shall include the fact of the entry, the date and time of the entry, the nature of the emergency and the names of the persons who entered.

(c) If the tenant requests repairs or maintenance in writing, the landlord or landlord’s agent, without further notice, may enter upon demand, in the tenant’s absence or without the tenant’s consent, for the purpose of making the requested repairs until the repairs are completed. The tenant’s written request may specify allowable times. Otherwise, the entry must be at a reasonable time. The authorization to enter provided by the tenant’s written request expires after seven days, unless the repairs are in progress and the landlord or landlord’s agent is making a reasonable effort to complete the repairs in a timely manner. If the person entering to do the repairs is not the landlord, upon request of the tenant, the person must show the tenant written evidence from the landlord authorizing that person to act for the landlord in making the repairs.

(d) A landlord and tenant may agree that the landlord or the landlord’s agent may enter the dwelling unit and the premises without notice at reasonable times for the purpose of showing the premises to a prospective buyer, provided that the agreement:

(A) Is executed at a time when the landlord is actively engaged in attempts to sell the premises;

(B) Is reflected in a writing separate from the rental agreement and signed by both parties; and

(e)(A) If a written agreement requires the landlord to perform yard maintenance or grounds keeping for the premises:

(i) A landlord and tenant may agree that the landlord or landlord’s agent may enter for that purpose upon the premises under the tenant’s exclusive control not including the dwelling unit, without notice to the tenant, at reasonable times and with reasonable frequency. The terms of the right of entry must be described in the rental agreement or in a separate written agreement.

(ii) A tenant may deny consent for a landlord or landlord’s agent to enter upon the premises pursuant to this paragraph if the entry is at an unreasonable time or with unreasonable frequency. The tenant must assert the denial by giving actual notice of the denial to the landlord or landlord’s agent prior to, or at the time of, the attempted entry.

(B) As used in this paragraph:

(i) “Yard maintenance or grounds keeping” includes, but is not limited to, weeding, mowing grass and pruning trees and shrubs.

(ii) “Unreasonable time” refers to a time of day, day of the week or particular time that conflicts with the tenant’s reasonable and specific plans to use the premises.

(f) In all other cases, unless there is an agreement between the landlord and the tenant to the contrary regarding a specific entry, the landlord shall give the tenant at least 24 hours’ actual notice of the intent of the landlord to enter and the landlord or landlord’s agent may enter only at reasonable times. The landlord or landlord’s agent may not enter if the tenant, after receiving the landlord’s notice, denies consent to enter. The tenant must assert this denial of consent by giving actual notice of the denial to the landlord or the landlord’s agent or by attaching a written notice of the denial in a secure manner to the main entrance to that portion of the premises or dwelling unit of which the tenant has exclusive control, prior to or at the time of the attempt by the landlord or landlord’s agent to enter.

(2) A landlord [shall] may not abuse the right of access or use it to harass the tenant. A tenant [shall] may not unreasonably withhold consent from the landlord to enter.

(3) This section does not apply to tenancies consisting of a rental of space in a facility for a manufactured dwelling or floating home under ORS 90.505 to 90.840.

(4) If a tenancy consists of rented space for a manufactured dwelling or floating home that is owned by the tenant, but the tenancy is not subject to ORS 90.505 to 90.840 because the space is not in a facility, this section shall allow access only to the rented space and not to the dwelling or home.

(5) A landlord has no other right of access except:

(a) Pursuant to court order;

(b) As permitted by ORS 90.410 (2); or

(6) If a landlord is required by a governmental agency to enter a dwelling unit or any portion of the premises under a tenant’s exclusive control, but the landlord fails to gain entry after a good faith effort in compliance with this section, the landlord [shall] may not be found in violation of any state statute or local ordinance due to the failure.

(7) If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or may terminate the rental agreement [pursuant to ORS 90.400 (1)] under section 7 of this 2005 Act and take possession [in the manner] as provided in ORS 105.105 to 105.168. In addition, the landlord may recover actual damages.

(8) If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but that have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the reoccurrence of the conduct or may terminate the rental agreement pursuant to ORS 90.360 (1). In addition, the tenant may recover actual damages not less than an amount equal to one week’s rent in the case of a week-to-week tenancy or one month’s rent in all other cases.

SECTION 21. ORS 90.415 is amended to read:

90.415. (1) Except as otherwise provided in this section, a landlord waives the right to terminate a rental agreement for a particular breach if the landlord:

(a) During two or more separate rental periods, accepts rent with knowledge of the default by the tenant; or

(b) Accepts performance by a tenant that varies from the terms of the rental agreement.

(2) For purposes of subsection (1)(a) of this section, a landlord has not accepted rent if within six days after receipt of the rent payment, the landlord refunds the rent.

(3) A landlord does not waive the right to terminate as described in subsection (1)(a) of this section if the termination is [pursuant to ORS 90.400 (3)] under section 9 of this 2005 Act.

(4) A landlord does not waive the right to terminate as described in subsection (1) of this section if the landlord and tenant agree otherwise after the breach has occurred.

(5) If a tenancy consists of rented space for a manufactured dwelling or floating home as described in ORS 90.505, a landlord does not waive the right to terminate as described in subsection (1) of this section if:

(a) The breach or default at issue concerns:

(A) Disrepair or deterioration of the manufactured dwelling or floating home pursuant to ORS 90.632; or

(B) A failure to maintain the space, as provided by ORS 90.740 (2), (4)(b) and (4)(h); or

(b) The breach or default at issue concerns the tenant’s conduct and, following the breach or default, but prior to acceptance of rent or performance as described in subsection (1) of this section, the landlord gives written notice to the tenant regarding the breach or default that:

(A) Describes specifically the conduct that constitutes the breach or default, either as a separate and distinct breach or default, a series or group of breaches or defaults or a continuous or ongoing breach or default;

(B) States that the tenant is required to discontinue the conduct or correct the breach or default; and

(C) States that a reoccurrence of the conduct that constitutes a breach or default may result in a termination of the tenancy pursuant to ORS 90.630. For a continuous or ongoing breach or default, the landlord’s notice remains effective for 12 months.

(6) Prior to giving a nonpayment of rent termination notice [pursuant to ORS 90.400 (2)] under section 8 of this 2005 Act, a landlord who accepts partial rent for a rental period does not waive the right to terminate for nonpayment if:

(a) The landlord accepted the partial rent before the landlord gave any notice of intent to terminate under [ORS 90.400 (2)] section 8 of this 2005 Act based on the tenant’s agreement to pay the balance by a time certain; and

(b) The tenant does not pay the balance of the rent as agreed.

(7) A landlord who accepts partial rent under subsection (6) of this section may proceed to serve a notice under [ORS 90.400 (2)] section 8 of this 2005 Act to terminate the tenancy if the balance of the rent is not paid, provided:

(a) The notice is served no earlier than it would have been permitted under [ORS 90.400 (2)] section 8 of this 2005 Act had no rent been accepted; and

(b) The notice permits the tenant to avoid termination of the tenancy for nonpayment of rent by paying the balance within 72 hours or 144 hours, as the case may be, or by any date to which the parties agreed, whichever is later.

(8) After giving a nonpayment of rent termination notice [pursuant to ORS 90.400 (2)] under section 8 of this 2005 Act, a landlord who accepts partial rent for a rental period does not waive the right to terminate for nonpayment if the landlord and tenant agree in writing that the acceptance does not constitute waiver.

(9) A written agreement under subsection (8) of this section may provide that the landlord may proceed to terminate the rental agreement and take possession [in the manner provided by] as provided in ORS 105.105 to 105.168 without serving a new notice under [ORS 90.400 (2)] section 8 of this 2005 Act in the event the tenant fails to pay the balance of the rent by a time certain.

(10) A landlord’s acceptance of partial rent for a rental period does not waive the right to terminate the rental agreement if the entire amount of the partial payment was from funds paid under the United States Housing Act of 1937 (42 U.S.C. 1437f) or any state low income rental housing fund administered by the Housing and Community Services Department.

(11) A landlord who accepts rent after the giving of a notice of termination by the landlord or the tenant, other than a nonpayment of rent notice, does not waive the right to terminate on that notice if:

(a) The landlord accepts rent prorated to the termination date specified in the notice; or

(b) Within six days after receipt of the rent payment, the landlord refunds at least the unused balance of the rent prorated for the period beyond the termination date.

(12) A landlord who has served a notice of termination for cause under ORS [90.400 (1),] 90.630 or 90.632 or section 7 of this 2005 Act does not waive the right to terminate on that notice by accepting rent for the rental period and beyond the period covered by the notice if within six days after the end of the remedy or correction period described in the applicable statute, the landlord refunds the rent for the period beyond the termination date.

(13) A landlord who has served a notice of termination for cause under ORS [90.400 (1),] 90.630 or 90.632 or section 7 of this 2005 Act and who has commenced proceedings under ORS 105.105 to 105.168 to recover possession of the premises does not waive the right to terminate on that notice:

(a) By accepting rent for any period beyond the expiration of the notice during which the tenant remains in possession provided:

(A) The landlord notifies the tenant in writing, in or after the service of the notice of termination for cause, that acceptance of rent while a termination action is pending will not waive the right to terminate on that notice; and

(B) The rent does not cover a period extending beyond the date of its acceptance.

(b) By serving a notice of nonpayment of rent under [ORS 90.400 (2)] section 8 of this 2005 Act.

(14) A landlord and tenant may by written agreement provide that monthly rent shall be paid in regular installments of less than a month pursuant to a schedule specified in the agreement. Those installment rent payments are not partial rent, as that term is used in this section.

(15) Unless otherwise agreed, a landlord does not waive the right to terminate as described in subsection (1) of this section by accepting:

(a) A last month’s rent deposit collected at the beginning of the tenancy, even if the deposit covers a period beyond a termination date; or

(b) Rent distributed pursuant to a court order releasing money paid into court as provided by ORS 90.370 (1).

(16) Notwithstanding subsections (2), (11) and (12) of this section, if a tenancy consists of rented space for a manufactured dwelling or floating home as described in ORS 90.505, the period for the landlord to refund rent under subsection (2), (11) or (12) of this section is seven days.

(17) When a landlord must refund rent under this section, the refund shall be made to the tenant or other payer by personal delivery or first class mail and may be in the form of the tenant’s or other payer’s check or any other form of check or money.

SECTION 22. ORS 90.429 is amended to read:

90.429. If a tenancy consists of rented space for a manufactured dwelling or floating home that is owned by the tenant, but the tenancy is not subject to ORS 90.505 to 90.840 because the space is not in a facility, the landlord may terminate a month-to-month tenancy without a cause specified in [ORS 90.400] section 7, 8 or 9 of this 2005 Act only by delivering a written notice of termination to the tenant not less than 180 days before the termination date designated in that notice.

SECTION 23. ORS 90.510 is amended to read:

90.510. (1) Every landlord who rents a space for a manufactured dwelling or floating home shall provide a written statement of policy to prospective and existing tenants. The purpose of the statement of policy is to provide disclosure of the landlord’s policies to prospective tenants and to existing tenants who have not previously received a statement of policy. The statement of policy is not a part of the rental agreement. The statement of policy shall provide all of the following information in summary form:

(a) The location and approximate size of the space to be rented.

(b) The federal fair-housing age classification and present zoning that affect the use of the rented space.

(c) The facility policy regarding rent adjustment and a rent history for the space to be rented. The rent history must, at a minimum, show the rent amounts on January 1 of each of the five preceding calendar years or during the length of the landlord’s ownership, leasing or subleasing of the facility, whichever period is shorter.

(d) All personal property, services and facilities to be provided by the landlord.

(e) All installation charges imposed by the landlord and installation fees imposed by government agencies.

(f) The facility policy regarding rental agreement termination including, but not limited to, closure of the facility.

(g) The facility policy regarding facility sale.

(h) The facility policy regarding informal dispute resolution.

(i) Utilities and services available, the person furnishing them and the person responsible for payment.

(j) If a tenants’ association exists for the facility, a one-page summary about the tenants’ association that shall be provided to the landlord by the tenants’ association.

(k) Any facility policy regarding the removal of a manufactured dwelling, including a statement that removal requirements may impact the market value of a dwelling.

(2) The rental agreement and the facility rules and regulations shall be attached as an exhibit to the statement of policy. If the recipient of the statement of policy is a tenant, the rental agreement attached to the statement of policy shall be a copy of the agreement entered by the landlord and tenant.

(3)(a) Prospective tenants shall receive a copy of the statement of policy before signing a rental agreement;

(b) Existing tenants who have not previously received a copy of the statement of policy and who are on month-to-month rental agreements shall receive a copy of the statement of policy at the time a 90-day notice of a rent increase is issued; and

(c) All other existing tenants who have not previously received a copy of the statement of policy shall receive a copy of the statement of policy upon the expiration of their rental agreement and before signing a new agreement.

(4) Every landlord who rents a space for a manufactured dwelling or floating home shall provide a written rental agreement, except as provided by ORS 90.710 (2)(d), that shall be signed by the landlord and tenant and that cannot be unilaterally amended by one of the parties to the contract except by:

(a) Mutual agreement of the parties;

(b) Actions pursuant to ORS 90.530 or 90.600; or

(5) The agreement required by subsection (4) of this section shall specify:

(a) The location and approximate size of the rented space;

(b) The federal fair-housing age classification;

(d) All personal property, services and facilities to be provided by the landlord;

(e) All security deposits, fees and installation charges imposed by the landlord;

(f) Improvements that the tenant may or must make to the rental space, including plant materials and landscaping;

(g) Provisions for dealing with improvements to the rental space at the termination of the tenancy;

(h) Any conditions the landlord applies in approving a purchaser of a manufactured dwelling or floating home as a tenant in the event the tenant elects to sell the home. Those conditions shall be in conformance with state and federal law and may include, but are not limited to, conditions as to pets, number of occupants and screening or admission criteria;

(i) That the tenant may not sell the tenant’s manufactured dwelling or floating home to a person who intends to leave the manufactured dwelling or floating home on the rental space until the landlord has accepted the person as a tenant;

(j) The term of the tenancy;

(k) The process by which the rental agreement or rules and regulations may be changed, which shall identify that the rules and regulations may be changed with 60 days’ notice unless tenants of at least 51 percent of the eligible spaces file an objection within 30 days; and

(L) The process by which notices shall be given by either landlord or tenant.

(6) Every landlord who rents a space for a manufactured dwelling or floating home shall provide rules and regulations concerning the tenant’s use and occupancy of the premises. A violation of the rules and regulations may be cause for termination of a rental agreement. However, this subsection does not create a presumption that all rules and regulations are identical for all tenants at all times. A rule or regulation shall be enforceable against the tenant only if:

(a) The rule or regulation:

(A) Promotes the convenience, safety or welfare of the tenants;

(B) Preserves the landlord’s property from abusive use; or

(b) The rule or regulation:

(A) Is reasonably related to the purpose for which it is adopted and is reasonably applied;

(B) Is sufficiently explicit in its prohibition, direction or limitation of the tenant’s conduct to fairly inform the tenant of what the tenant shall do or [shall] may not do to comply; and

(7)(a) A landlord who rents a space for a manufactured dwelling or floating home may adopt a rule or regulation regarding occupancy guidelines. If adopted, an occupancy guideline in a facility [shall] must be based on reasonable factors and [shall] not be more restrictive than limiting occupancy to two people per bedroom.

(b) As used in this subsection:

(A) “Reasonable factors” may include but are not limited to:

(i) The size of the dwelling.

(ii) The size of the rented space.

(iii) Any discriminatory impact for reasons identified in ORS 659A.421.

(iv) Limitations placed on utility services governed by a permit for water or sewage disposal.

(B) “Bedroom” means a room that is intended to be used primarily for sleeping purposes and does not include bathrooms, toilet compartments, closets, halls, storage or utility space and similar areas.

(8)(a) If a written rental agreement so provides, a landlord may require a tenant to pay to the landlord a utility or service charge that has been billed by a utility or service provider to the landlord for utility or service provided directly to the tenant’s dwelling unit or to a common area available to the tenant as part of the tenancy. A utility or service charge that shall be assessed to a tenant for a common area must be described in the written rental agreement separately and distinctly from such a charge for the tenant’s dwelling unit. A landlord may not increase the utility or service charge to the tenant by adding any costs of the landlord, such as a handling or administrative charge, other than those costs billed to the landlord by the provider for utilities or services as provided by this subsection.

(b) A utility or service charge is not rent or a fee. Nonpayment of a utility or service charge [shall not constitute] is not grounds for termination of a rental agreement for nonpayment of rent [pursuant to ORS 90.400 (2)] under section 8 of this 2005 Act, but [shall constitute] is grounds for termination of a rental agreement for cause pursuant to ORS 90.630.

(9) Intentional and deliberate failure of the landlord to comply with subsections (1) to (3) of this section is cause for suit or action to remedy the violation or to recover actual damages. The prevailing party is entitled to reasonable attorney fees and court costs.

(10) A receipt signed by the potential tenant or tenants for documents required to be delivered by the landlord pursuant to subsections (1) to (3) of this section is a defense for the landlord in an action against the landlord for nondelivery of the documents.

(11) A suit or action arising under subsection (9) of this section must be commenced within one year after the discovery or identification of the alleged violation.

(12) Every landlord who publishes a directory of tenants and tenant services must include a one-page summary regarding any tenants’ association. The tenants’ association shall provide the summary to the landlord.

SECTION 24. ORS 90.545 is amended to read:

90.545. (1) Except [if renewed or extended as provided by] as provided under subsections (2) to (6) of this section, a fixed term tenancy for space for a manufactured dwelling or floating home [shall], upon reaching its ending date, automatically [renew] renews as a month-to-month tenancy having the same terms and conditions, other than duration and rent increases [pursuant to] under ORS 90.600, unless the tenancy is terminated [pursuant to] under ORS 90.380 (5)(b), [90.400 (2), (3) or (9),] 90.630 or 90.632 or sections 8, 9 and 10 of this 2005 Act.

(2) To renew or extend a fixed term tenancy for another term, of any duration that is consistent with ORS 90.540, the landlord shall submit the proposed new rental agreement to the tenant at least 60 days prior to the ending date of the term. The landlord shall include with the proposed agreement a written statement that summarizes any new or revised terms, conditions, rules or regulations.

(3) Notwithstanding ORS 90.610 (3), a landlord’s proposed new rental agreement may include new or revised terms, conditions, rules or regulations, if the new or revised terms, conditions, rules or regulations:

(a)(A) Fairly implement a statute or ordinance adopted after the creation of the existing agreement; or

(B) Are the same as those offered to new or prospective tenants in the facility at the time the proposed agreement is submitted to the tenant and for the six-month period preceding the submission of the proposed agreement or, if there have been no new or prospective tenants during the six-month period, are the same as are customary for the rental market;

(b) Are consistent with the rights and remedies provided to tenants under this chapter, including the right to keep a pet pursuant to ORS 90.530;

(c) Do not relate to the age, size, style, construction material or year of construction of the manufactured dwelling or floating home contrary to ORS 90.632 (2); and

(d) Do not require an alteration of the manufactured dwelling or floating home or alteration or new construction of an accessory building or structure.

(4) A tenant shall accept or reject a landlord’s proposed new rental agreement at least 30 days prior to the ending of the term by giving written notice to the landlord.

(5) If a landlord fails to submit a proposed new rental agreement as provided by subsection (2) of this section, the tenancy renews as a month-to-month tenancy as provided by subsection (1) of this section.

(6) If a tenant fails to accept or unreasonably rejects a landlord’s proposed new rental agreement as provided by subsection (4) of this section, the fixed term tenancy terminates on the ending date without further notice and the landlord may take possession by complying with ORS 105.105 to 105.168.

(7) If a tenancy terminates under conditions described in subsection (6) of this section, and the tenant surrenders or delivers possession of the premises to the landlord prior to the filing of an action pursuant to ORS 105.110, the tenant has the right to enter into a written storage agreement with the landlord, with the tenant having the same rights and responsibilities as a lienholder under ORS 90.675 (19), except that the landlord may limit the term of the storage agreement to not exceed six months. Unless the parties agree otherwise, the storage agreement must commence upon the date of the termination of the tenancy. The rights under ORS 90.675 of any lienholder are delayed until the end of the tenant storage agreement.

SECTION 25. ORS 90.630 is amended to read:

90.630. (1) Except as provided in subsection (4) of this section, the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days’ notice in writing before the date designated in the notice for termination if the tenant:

(a) Violates a law or ordinance related to the tenant’s conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740;

(b) Violates a rule or rental agreement provision related to the tenant’s conduct as a tenant and imposed as a condition of occupancy, including but not limited to a material noncompliance with a rental agreement regarding a program of recovery in drug and alcohol free housing; or

(A) Late charge pursuant to ORS 90.260;

(B) Fee pursuant to ORS 90.302; or

(2) A violation making a tenant subject to termination under subsection (1) of this section includes a tenant’s failure to maintain the space as required by law, ordinance, rental agreement or rule, but does not include the physical condition of the dwelling or home. Termination of a rental agreement based upon the physical condition of a dwelling or home shall only be as provided in ORS 90.632.

(3) The notice required by subsection (1) of this section shall state facts sufficient to notify the tenant of the reasons for termination of the tenancy.

(4) The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in subsection (1) of this section. However, if substantially the same act or omission [which] that constituted a prior violation of which notice was given recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days’ written notice specifying the violation and the date of termination of the tenancy.

(5) The landlord of a facility may terminate a rental agreement that is a month-to-month or fixed term tenancy for a facility space if the facility or a portion of it that includes the space is to be closed and the land or leasehold converted to a different use, which is not required by the exercise of eminent domain or by order of state or local agencies, by:

(a) Not less than 365 days’ notice in writing before the date designated in the notice for termination; or

(b) Not less than 180 days’ notice in writing before the date designated in the notice for termination, if the landlord finds space acceptable to the tenant to which the tenant can move the manufactured dwelling or floating home and the landlord pays the cost of moving and set-up expenses or $3,500, whichever is less.

(6) The landlord may:

(a) Provide greater financial incentive to encourage the tenant to accept an earlier termination date than that provided in subsection (5) of this section; or

(b) Contract with the tenant for a mutually acceptable arrangement to assist the tenant’s move.

(7) The Housing and Community Services Department shall adopt rules to implement the provisions of subsection (5) of this section.

(8)(a) A landlord may not increase the rent for the purpose of offsetting the payments required under this section.

(b) There shall be no increase in the rent after a notice of termination is given pursuant to this section.

(9) This section does not limit a landlord’s right to terminate a tenancy for nonpayment of rent [pursuant to ORS 90.400 (2)] under section 8 of this 2005 Act or for other cause [pursuant to] under ORS 90.380 (5)(b)[, 90.400 (3) or (9)] or 90.632 or section 9 or 10 of this 2005 Act by complying with ORS 105.105 to 105.168.

(10) A tenancy [shall terminate] terminates on the date designated in the notice and without regard to the expiration of the period for which, by the terms of the rental agreement, rents are to be paid. Unless otherwise agreed, rent is uniformly apportionable from day to day.

(11) Nothing in subsection (5) of this section shall prevent a landlord from relocating a floating home to another comparable space in the same facility or another facility owned by the same owner in the same city if the landlord desires or is required to make repairs, to remodel or to modify the tenant’s original space.

(12)(a) Notwithstanding any other provision of this section or [ORS 90.400] section 7, 8, 9 or 10 of this 2005 Act, the landlord may terminate the rental agreement for space for a manufactured dwelling or floating home because of repeated late payment of rent by giving the tenant not less than 30 days’ notice in writing before the date designated in that notice for termination and may take possession [in the manner] as provided in ORS 105.105 to 105.168 if:

(A) The tenant has not paid the monthly rent prior to the eighth day of the rental period as described in [ORS 90.400 (2)(b)(A)] section 8 (2)(a) of this 2005 Act or the fifth day of the rental period as described in [ORS 90.400 (2)(b)(B)] section 8 (2)(b) of this 2005 Act in at least three of the preceding 12 months and the landlord has given the tenant a notice for nonpayment of rent pursuant to [ORS 90.400 (2)(b)] section 8 (2) of this 2005 Act during each of those three instances of nonpayment;

(B) The landlord warns the tenant of the risk of a 30-day notice for termination with no right to correct the cause, upon the occurrence of a third notice for nonpayment of rent within a 12-month period. The warning must be contained in at least two notices for nonpayment of rent that precede the third notice within a 12-month period or in separate written notices that are given concurrent with, or a reasonable time after, each of the two notices for nonpayment of rent; and

(C) The 30-day notice of termination states facts sufficient to notify the tenant of the cause for termination of the tenancy and is given to the tenant concurrent with or after the third or a subsequent notice for nonpayment of rent.

(b) Notwithstanding subsection (2) of this section, a tenant who receives a 30-day notice of termination pursuant to this subsection [shall have no] does not have a right to correct the cause for the notice.

(c) The landlord may give a copy of the notice required by paragraph (a) of this subsection to any lienholder of the manufactured dwelling or floating home by first class mail with certificate of mailing or by any other method allowed by ORS 90.150 (2) and (3). A landlord is not liable to a tenant for any damages incurred by the tenant as a result of the landlord giving a copy of the notice in good faith to a lienholder. A lienholder’s rights and obligations regarding an abandoned manufactured dwelling or floating home shall be as provided under ORS 90.675.

SECTION 26. ORS 90.632 is amended to read:

90.632. (1) A landlord may terminate a month-to-month or fixed term rental agreement and require the tenant to remove a manufactured dwelling or floating home from a facility, due to the physical condition of the manufactured dwelling or floating home, only by complying with this section and ORS 105.105 to 105.168. A termination shall include removal of the dwelling or home.

(2) A landlord [shall] may not require removal of a manufactured dwelling or floating home, or consider a dwelling or home to be in disrepair or deteriorated, because of the age, size, style or original construction material of the dwelling or home or because the dwelling or home was built prior to adoption of the National Manufactured Home Construction and Safety Standards Act of 1974 (42 U.S.C. 5403), in compliance with the standards of that Act in effect at that time or in compliance with the state building code as defined in ORS 455.010.

(3) Except as provided in subsection (5) of this section, if the tenant’s dwelling or home is in disrepair or is deteriorated, a landlord may terminate a rental agreement and require the removal of a dwelling or home by giving to the tenant not less than 30 days’ written notice before the date designated in the notice for termination.

(4) The notice required by subsection (3) of this section shall:

(a) State facts sufficient to notify the tenant of the causes or reasons for termination of the tenancy and removal of the dwelling or home;

(b) State that the tenant can avoid termination and removal by correcting the cause for termination and removal within the notice period;

(d) Describe the tenant’s right to give the landlord a written notice of correction, where to give the notice and the deadline for giving the notice in order to ensure a response by the landlord, all as provided by subsection (6) of this section; and

(e) Describe the tenant’s right to have the termination and correction period extended as provided by subsection (7) of this section.

(5) The tenant may avoid termination of the tenancy by correcting the cause within the period specified. However, if substantially the same condition that constituted a prior cause for termination of which notice was given recurs within 12 months after the date of the notice, the landlord may terminate the tenancy and require the removal of the dwelling or home upon at least 30 days’ written notice specifying the violation and the date of termination of the tenancy.

(6) During the termination notice or extension period, the tenant may give the landlord written notice that the tenant has corrected the cause for termination. Within a reasonable time after the tenant’s notice of correction, the landlord shall respond to the tenant in writing, stating whether the landlord agrees that the cause has been corrected. If the tenant’s notice of correction is given at least 14 days prior to the end of the termination notice or extension period, failure by the landlord to respond as required by this subsection shall be a defense to a termination based upon the landlord’s notice for termination.

(7) Except when the disrepair or deterioration creates a risk of imminent and serious harm to other dwellings, homes or persons within the facility, the 30-day period provided for the tenant to correct the cause for termination and removal shall be extended by at least:

(a) An additional 60 days if:

(A) The necessary correction involves exterior painting, roof repair, concrete pouring or similar work and the weather prevents that work during a substantial portion of the 30-day period; or

(B) The nature or extent of the correction work is such that it cannot reasonably be completed within 30 days because of factors such as the amount of work necessary, the type and complexity of the work and the availability of necessary repair persons; or

(b) An additional six months if the disrepair or deterioration has existed for more than the preceding 12 months with the landlord’s knowledge or acceptance as described in ORS 90.415 (1).

(8) In order to have the period for correction extended as provided in subsection (7) of this section, a tenant must give the landlord written notice describing the necessity for an extension in order to complete the correction work. The notice must be given a reasonable amount of time prior to the end of the notice for termination period.

(9) A tenancy [shall terminate] terminates on the date designated in the notice and without regard to the expiration of the period for which, by the terms of the rental agreement, rents are to be paid. Unless otherwise agreed, rent is uniformly apportionable from day to day.

(10) This section does not limit a landlord’s right to terminate a tenancy for nonpayment of rent [pursuant to ORS 90.400 (2)] under section 8 of this 2005 Act or for other cause [pursuant to] under ORS 90.380 (5)(b)[, 90.400 (3) or (9)] or 90.630 or section 9 or 10 of this 2005 Act by complying with ORS 105.105 to 105.168.

(11) A landlord may give a copy of the notice for termination required by this section to any lienholder of the dwelling or home, by first class mail with certificate of mailing or by any other method allowed by ORS 90.150 (2) and (3). A landlord is not liable to a tenant for any damages incurred by the tenant as a result of the landlord giving a copy of the notice in good faith to a lienholder.

(12) When a tenant has been given a notice for termination pursuant to this section and has subsequently abandoned the dwelling or home as described in ORS 90.675, any lienholder shall have the same rights as provided by ORS 90.675, including the right to correct the cause of the notice, within the 90-day period provided by ORS 90.675 (19) notwithstanding the expiration of the notice period provided by this section for the tenant to correct the cause.

SECTION 27. ORS 92.840 is amended to read:

92.840. (1) Notwithstanding the provisions of ORS 92.016 (1), prior to the approval of a tentative plan, the declarant may negotiate to sell a lot in a manufactured dwelling park or a mobile home park for which approval is required under ORS 92.830 to 92.845.

(2) Prior to the sale of a lot in a park, the declarant shall offer to sell the lot to the tenant who occupies the lot. The offer required under this subsection:

(a) Terminates 60 days after receipt of the offer by the tenant or upon written rejection of the offer, whichever occurs first; and

(b) Does not constitute a notice of termination of the tenancy.

(3) The declarant may not sell the lot to a person other than the tenant for 60 days after termination of the offer required under subsection (2) of this section at a price or on terms that are more favorable to the purchaser than the price or terms that were offered to the tenant.

(4) After the park has been submitted for subdivision under ORS 92.830 to 92.845 and until a lot is offered for sale in accordance with subsection (2) of this section, the declarant shall notify a prospective tenant, in writing, prior to the commencement of the tenancy, that the park has been submitted for subdivision and that the tenant is entitled to receive an offer to purchase the lot under subsection (2) of this section.

(5) Prior to any sale of a lot in a subdivision created in the park, the declarant must provide the tenant or other potential purchaser of the lot with information about the homeowners association formed by the declarant as required by ORS 94.625. The information must, at a minimum, include the association name and type and any rights set forth in the declaration required by ORS 94.580.

(6) The declarant may not begin improvements or rehabilitation to the lot during the period described in ORS 90.630 (5) without the permission of the tenant.

(7) The declarant may begin improvements or rehabilitation to the common property as defined in the declaration during the period described in ORS 90.630 (5).

(8) Nothing in this section prevents the declarant from terminating a tenancy in the park in compliance with ORS 90.630, 90.632 and 90.635. However, the declarant shall make the offer required under subsection (2) of this section to a tenant whose tenancy is terminated after approval of the tentative plan unless the termination is for cause under ORS [90.400,] 90.630 (1) or (12) or 90.632 or section 7, 8 or 9 of this 2005 Act.

SECTION 28. ORS 105.115 is amended to read:

105.115. (1) Except as provided by subsections (2) and (3) of this section, the following are causes of unlawful holding by force within the meaning of ORS 105.110, 105.123 and 105.126:

(a) When the tenant or person in possession of any premises fails or refuses to pay rent within 10 days after it is due under the lease or agreement under which the tenant or person in possession holds, or to deliver possession of the premises after being in default on payment of rent for 10 days.

(b) When the lease by its terms has expired and has not been renewed, or when the tenant or person in possession is holding from month to month, or year to year, and remains in possession after notice to quit as provided in ORS 105.120, or is holding contrary to any condition or covenant of the lease or is holding possession without any written lease or agreement.

(2) In the case of a dwelling unit to which ORS chapter 90 applies:

(a) The following are causes of unlawful holding by force within the meaning of ORS 105.110 and 105.123:

(A) When the tenant or person in possession of any premises fails or refuses to pay rent within 72 hours or 144 hours, as the case may be, of the notice required by [ORS 90.400 (2)] section 8 of this 2005 Act.

(B) When a rental agreement by its terms has expired and has not been renewed, or when the tenant or person in possession remains in possession after a valid notice terminating the tenancy pursuant to ORS chapter 90, or is holding contrary to any valid condition or covenant of the rental agreement or ORS chapter 90.

(b) A landlord may not file an action for the return of possession of a dwelling unit based upon a cause of unlawful holding by force as described in paragraph (a) of this subsection until after the expiration of a rental agreement for a fixed term tenancy or after the expiration of the time period provided in a notice terminating the tenancy.

(3) In an action under subsection (2) of this section, ORS chapter 90 shall be applied to determine the rights of the parties, including:

(a) Whether and in what amount rent is due;

(b) Whether a tenancy or rental agreement has been validly terminated; and

(c) Whether the tenant is entitled to remedies for retaliatory conduct by the landlord as provided by ORS 90.385 and 90.765.

SECTION 29. ORS 105.124 is amended to read:

105.124. For a complaint described in ORS 105.123, if ORS chapter 90 applies to the dwelling unit:

(1) The complaint must be in substantially the following form and be available from the clerk of the court:

______________________________________________________________________________

IN THE CIRCUIT COURT

FOR THE COUNTY OF

______________

No. _______

RESIDENTIAL EVICTION COMPLAINT

PLAINTIFF (Landlord or agent):

______________________

Address: ___________________

City: ___________________

State: ________________ Zip: _______

Telephone: ________________

vs.

DEFENDANT (Tenants/Occupants):

______________________

MAILING ADDRESS: _________________

City: ___________________

State: ________________ Zip: _______

Telephone: ________________

Defendant’s Social Security number _______ (Optional information for purposes of identification.)

Tenants are in possession of the dwelling unit, premises or rental property described above or located at:

________________________

Landlord is entitled to possession of the property because of:

__ 24-hour notice for personal

injury, substantial damage, extremely

outrageous act or unlawful occupant.

[ORS 90.400 (3)] Section 9 or 12 of

this 2005 Act.

__ 24-hour or 48-hour notice for

violation of a drug or alcohol

program. [ORS 90.400 (9)] Section 10

of this 2005 Act.

__ 72-hour or 144-hour notice for

nonpayment of rent. [ORS 90.400 (2)]

Section 8 of this 2005 Act.

__ 7-day notice with stated cause in

a week-to-week tenancy. [ORS 90.400]

[(1)(a) and (e)(A)] Section 7 (6) of

this 2005 Act.

__ 10-day notice for a pet violation,

a repeat violation in a month-to-month

tenancy or without stated cause in a

week-to-week tenancy. ORS 90.405[,]

[90.400 (1)(d)] or 90.427 (1) or section

7 (5) of this 2005 Act.

__ 20-day notice for a repeat violation.

ORS 90.630 (4).

__ 30-day or 180-day notice without

stated cause in a month-to-month

tenancy. ORS 90.427 (2) or 90.429.

__ 30-day notice with stated cause.

ORS [90.400 (1),] 90.630 or 90.632

or section 7 of this 2005 Act.

__ Other notice ______

__ No notice (explain) ______

A COPY OF THE NOTICE RELIED UPON, IF ANY, IS ATTACHED

If the landlord uses an attorney, the case goes to trial and the landlord wins in court, the landlord can collect attorney fees from the defendant pursuant to ORS 90.255 and 105.137 (3).

Landlord requests judgment for possession of the premises, court costs, disbursements and attorney fees.

I certify that the allegations and factual assertions in this complaint are true to the best of my knowledge.

______________________

Signature of landlord or agent.

______________________________________________________________________________

(2) The complaint must be signed by the plaintiff or an attorney representing the plaintiff as provided by ORCP 17, or verified by an agent or employee of the plaintiff or an agent or employee of an agent of the plaintiff.

(3) A copy of the notice relied upon, if any, must be attached to the complaint.

SECTION 30. ORS 105.139 is amended to read:

105.139. If a landlord brings an action for possession under [ORS 90.400 (3)(f)] section 12 of this 2005 Act and the person in possession contends that the tenant has not vacated the premises, the burden of proof is on the defendant as to that issue.

SECTION 31. (1) If a landlord requires an applicant to pay an applicant screening charge and the application is denied, or if an applicant makes a written request following the landlord’s denial of an application, the landlord must promptly provide the applicant with a written statement of one or more reasons for the denial.

(2) The landlord’s statement of reasons for denial required by subsection (1) of this section may consist of a form with one or more reasons checked off. The reasons may include, but are not limited to, the following:

(a) Rental information, including:

(A) Negative or insufficient reports from references or other sources.

(B) An unacceptable or insufficient rental history, such as the lack of a reference from a prior landlord.

(C) A prior action for possession under ORS 105.105 to 105.168 that resulted in a general judgment for the plaintiff or an action for possession that has not yet resulted in dismissal or general judgment.

(D) Inability to verify information regarding a rental history.

(b) Criminal records, including:

(A) An unacceptable criminal history.

(B) Inability to verify information regarding criminal history.

(c) Financial information, including:

(A) Insufficient income.

(B) Negative information provided by a consumer credit reporting agency.

(C) Inability to verify information regarding credit history.

(d) Failure to meet other written screening or admission criteria.

(e) The dwelling unit has already been rented.

(3) If a landlord fails to comply with this section, the applicant may recover from the landlord $100.

SECTION 32. ORS 90.390 is amended to read:

90.390. (1) A landlord may not discriminate against a tenant in violation of local, state or federal law, including ORS 346.630, 346.660, 346.690, 659A.145 and 659A.421.

(2) If the tenant can prove that the landlord has in fact acted in violation of subsection (1) of this section the tenant has a defense in any discriminatory action brought by the landlord against the tenant for possession, unless the tenant is in default in rent.

(3) A tenant may prove a landlord’s discrimination in violation of ORS 659A.145 or 659A.421 by demonstrating that a facially neutral housing policy has a disparate adverse impact on members of a protected class as described in ORS 659A.424.

(4) A landlord may not discriminate against an applicant solely because the applicant was [in fact] a defendant in an action for possession pursuant to ORS 105.105 to 105.168 that [prior to the application was dismissed in favor of the defendant] was dismissed or that resulted in [final] general judgment for the defendant prior to the application. This subsection does not apply if the prior action has not resulted in a dismissal or general judgment at the time of the application. If the landlord knowingly acts in violation of this subsection, the applicant may recover actual damages or $200, whichever is greater.

SECTION 33. ORS 105.137 is amended to read:

105.137. In the case of a dwelling unit to which ORS chapter 90 applies:

(1) If the plaintiff appears and the defendant fails to appear at the first appearance, a default judgment shall be entered [against the defendant] in favor of the plaintiff for possession of the premises and costs and disbursements.

(2) If the defendant appears and the plaintiff fails to appear at the first appearance, [an order shall be entered dismissing the complaint and awarding costs and disbursements against the plaintiff in favor of the defendant.] a default judgment shall be entered in favor of the defendant dismissing the plaintiff’s complaint and awarding costs and disbursements.

(3) An attorney at law shall be entitled to appear on behalf of any party, but no attorney fees may be awarded if the defendant does not contest the action.

(4) The plaintiff or an agent of the plaintiff may obtain a continuance of the action for as long as the plaintiff or the agent of the plaintiff deems necessary to obtain the services of an attorney at law.

(5) If both parties appear in court on the date contained in the summons, the court shall set the matter for trial as soon as practicable, unless the court is advised by the parties that the matter has been settled. The trial shall be scheduled no later than 15 days from the date of such appearance. If the matter is not tried within the 15-day period, and the delay in trial is not attributable to the landlord, the court shall order the defendant to pay rent that is accruing into court, provided the court finds after hearing that entry of such an order is just and equitable.

(6)(a) The court shall permit an unrepresented defendant to proceed to trial by directing the defendant to file an answer in writing on a form which shall be available from the court clerk, and to serve a copy upon the plaintiff on the same day as first appearance.

(b) The answer shall be in substantially the following form:

______________________________________________________________________________

IN THE ______ COURT FOR

THE COUNTY OF ________

(Landlord), )

)

Plaintiff(s), )

)

vs. ) No.__

)

(Tenant), )

)

Defendant(s). )

ANSWER

I (we) deny that the plaintiff(s) is (are) entitled to possession because:

__ The landlord did not make repairs.

List any repair problems: ________________

____________________________________

__ The landlord is attempting to evict me (us)

because of my (our) complaints (or the eviction is otherwise retaliatory).

__ The eviction notice is wrong.

__ List any other defenses: ________________

____________________________________

I (we) may be entitled as the prevailing party to recover attorney fees from plaintiff(s) if I (we) obtain legal services to defend this action pursuant to ORS 90.255.

I (we) ask that the plaintiff(s) not be awarded possession of the premises and that I (we) be awarded my (our) costs and disbursements and attorney fees, if applicable, or a prevailing party fee.

_______________ ___________________

Date Signature of defendant(s)

______________________________________________________________________________

(7) If an unrepresented defendant files an answer as provided in subsection (6) of this section, the answer [shall] may not limit the defenses available to the defendant at trial under ORS chapter 90. If such a defendant seeks to assert at trial a defense not fairly raised by the answer, the plaintiff shall be entitled to a reasonable continuance for the purposes of preparing to meet the defense.

SECTION 34. ORS 90.425, as amended by section 57, chapter 655, Oregon Laws 2003, is amended to read:

90.425. (1) As used in this section:

(a) “Current market value” means the amount in cash, as determined by the county assessor, that could reasonably be expected to be paid for a manufactured dwelling or floating home by an informed buyer to an informed seller, each acting without compulsion in an arm’s-length transaction occurring on the assessment date for the tax year or on the date of a subsequent reappraisal by the county assessor.

(b) “Dispose of the personal property” means that, if reasonably appropriate, the landlord may throw away the property or may give it without consideration to a nonprofit organization or to a person unrelated to the landlord. The landlord may not retain the property for personal use or benefit.

(c) “Goods” includes those goods left inside a recreational vehicle, manufactured dwelling or floating home or left upon the rental space outside a recreational vehicle, manufactured dwelling or floating home, whether the recreational vehicle, dwelling or home is located inside or outside of a facility.

(d) “Lienholder” means any lienholder of an abandoned recreational vehicle, manufactured dwelling or floating home, if the lien is of record or the lienholder is actually known to the landlord.

(e) “Of record” means:

(A) For a recreational vehicle that is not a manufactured structure as defined in ORS 446.561, that a security interest has been properly recorded with the Department of Transportation pursuant to ORS 802.200 (1)(a)(A) and 803.097.

(B) For a manufactured dwelling or recreational vehicle that is a manufactured structure as defined in ORS 446.561, that a security interest has been properly recorded for the manufactured dwelling or recreational vehicle in the records of the Department of Consumer and Business Services pursuant to ORS 446.611 or on a certificate of title issued by the Department of Transportation prior to July 1, 2004.

(C) For a floating home, that a security interest has been properly recorded with the State Marine Board pursuant to ORS 830.740 to 830.755 for a home registered and titled with the board pursuant to ORS 830.715.

(f) “Owner” means any owner of an abandoned recreational vehicle, manufactured dwelling or floating home, if different from the tenant and either of record or actually known to the landlord.

(g) “Personal property” means goods, vehicles and recreational vehicles and includes manufactured dwellings and floating homes not located in a facility. “Personal property” does not include manufactured dwellings and floating homes located in a facility and therefore subject to being stored, sold or disposed of as provided under ORS 90.675.

(2) A landlord may not store, sell or dispose of abandoned personal property except as provided by this section. This section governs the rights and obligations of landlords, tenants and any lienholders or owners in any personal property abandoned or left upon the premises by the tenant or any lienholder or owner in the following circumstances:

(a) The tenancy has ended by termination or expiration of a rental agreement or by relinquishment or abandonment of the premises and the landlord reasonably believes under all the circumstances that the tenant has left the personal property upon the premises with no intention of asserting any further claim to the premises or to the personal property;

(b) The tenant has been absent from the premises continuously for seven days after termination of a tenancy by a court order that has not been executed; or

(3) Prior to selling or disposing of the tenant’s personal property under this section, the landlord must give a written notice to the tenant that must be:

(a) Personally delivered to the tenant; or

(b) Sent by first class mail addressed and mailed to the tenant at:

(A) The premises;

(B) Any post-office box held by the tenant and actually known to the landlord; and

(4)(a) In addition to the notice required by subsection (3) of this section, in the case of an abandoned recreational vehicle, manufactured dwelling or floating home, a landlord shall also give a copy of the notice described in subsection (3) of this section to:

(A) Any lienholder of the recreational vehicle, manufactured dwelling or floating home;

(B) Any owner of the recreational vehicle, manufactured dwelling or floating home;

(D) The assessor of the county where the manufactured dwelling or floating home is located.

(b) The landlord shall give the notice copy required by this subsection by personal delivery or first class mail, except that for any lienholder, mail service must be both by first class mail and by certified mail with return receipt requested.

(A) Actually known to the landlord;

(B) Of record; and

(C) Provided to the landlord by the lienholder in a written notice that identifies the personal property subject to the lien and that was sent to the landlord by certified mail with return receipt requested within the preceding five years. The notice must identify the personal property by describing the physical address of the property.

(5) The notice required under subsection (3) of this section must state that:

(a) The personal property left upon the premises is considered abandoned;

(b) The tenant or any lienholder or owner must contact the landlord by a specified date, as provided in subsection (6) of this section, to arrange for the removal of the abandoned personal property;

(c) The personal property is stored at a place of safekeeping, except that if the property includes a manufactured dwelling or floating home, the dwelling or home must be stored on the rented space;

(d) The tenant or any lienholder or owner, except as provided by subsection (18) of this section, may arrange for removal of the personal property by contacting the landlord at a described telephone number or address on or before the specified date;

(e) The landlord shall make the personal property available for removal by the tenant or any lienholder or owner, except as provided by subsection (18) of this section, by appointment at reasonable times;

(f) If the personal property is considered to be abandoned pursuant to subsection (2)(a) or (b) of this section, the landlord may require payment of removal and storage charges, as provided by subsection (7)(d) of this section, prior to releasing the personal property to the tenant or any lienholder or owner;

(g) If the personal property is considered to be abandoned pursuant to subsection (2)(c) of this section, the landlord may not require payment of storage charges prior to releasing the personal property;

(h) If the tenant or any lienholder or owner fails to contact the landlord by the specified date, or after that contact, fails to remove the personal property within 30 days for recreational vehicles, manufactured dwellings and floating homes or 15 days for all other personal property, the landlord may sell or dispose of the personal property. If the landlord reasonably believes that the personal property will be eligible for disposal pursuant to subsection (10)(b) of this section and the landlord intends to dispose of the property if the property is not claimed, the notice shall state that belief and intent; and

(i) If the personal property includes a recreational vehicle, manufactured dwelling or floating home and if applicable, there is a lienholder or owner that has a right to claim the recreational vehicle, dwelling or home, except as provided by subsection (18) of this section.

(6) For purposes of subsection (5) of this section, the specified date by which a tenant, lienholder or owner must contact a landlord to arrange for the disposition of abandoned personal property is:

(a) For abandoned recreational vehicles, manufactured dwellings or floating homes, not less than 45 days after personal delivery or mailing of the notice; or

(b) For all other abandoned personal property, not less than five days after personal delivery or eight days after mailing of the notice.

(7) After notifying the tenant as required by subsection (3) of this section, the landlord:

(a) Shall store any abandoned manufactured dwelling or floating home on the rented space and shall exercise reasonable care for the dwelling or home;

(b) Shall store all other abandoned personal property of the tenant, including goods left inside a recreational vehicle, manufactured dwelling or floating home or left upon the rented space outside a recreational vehicle, dwelling or home, in a place of safekeeping and shall exercise reasonable care for the personal property, except that the landlord may:

(A) Promptly dispose of rotting food; and

(B) Allow an animal control agency to remove any abandoned pets or livestock. If an animal control agency will not remove the abandoned pets or livestock, the landlord shall exercise reasonable care for the animals given all the circumstances, including the type and condition of the animals, and may give the animals to an agency that is willing and able to care for the animals, such as a humane society or similar organization;

(c) Except for manufactured dwellings and floating homes, may store the abandoned personal property at the dwelling unit, move and store it elsewhere on the premises or move and store it at a commercial storage company or other place of safekeeping; and

(d) Is entitled to reasonable or actual storage charges and costs incidental to storage or disposal, including any cost of removal to a place of storage. In the case of an abandoned manufactured dwelling or floating home, the storage charge may be no greater than the monthly space rent last payable by the tenant.

(8) If a tenant, lienholder or owner, upon the receipt of the notice provided by subsection (3) or (4) of this section or otherwise, responds by actual notice to the landlord on or before the specified date in the landlord’s notice that the tenant, lienholder or owner intends to remove the personal property from the premises or from the place of safekeeping, the landlord must make that personal property available for removal by the tenant, lienholder or owner by appointment at reasonable times during the 15 days or, in the case of a recreational vehicle, manufactured dwelling or floating home, 30 days following the date of the response, subject to subsection (18) of this section. If the personal property is considered to be abandoned pursuant to subsection (2)(a) or (b) of this section, but not pursuant to subsection (2)(c) of this section, the landlord may require payment of removal and storage charges, as provided in subsection (7)(d) of this section, prior to allowing the tenant, lienholder or owner to remove the personal property. Acceptance by a landlord of such payment does not operate to create or reinstate a tenancy or create a waiver pursuant to ORS 90.415.

(9) Except as provided in subsections (18) to (20) of this section, if the tenant, lienholder or owner of a recreational vehicle, manufactured dwelling or floating home does not respond within the time provided by the landlord’s notice, or the tenant, lienholder or owner does not remove the personal property within the time required by subsection (8) of this section or by any date agreed to with the landlord, whichever is later, the tenant’s, lienholder’s or owner’s personal property is conclusively presumed to be abandoned. The tenant and any lienholder or owner that have been given notice pursuant to subsection (3) or (4) of this section shall, except with regard to the distribution of sale proceeds pursuant to subsection (13) of this section, have no further right, title or interest to the personal property and may not claim or sell the property.

(10) If the personal property is presumed to be abandoned under subsection (9) of this section, the landlord then may:

(a) Sell the personal property at a public or private sale, provided that prior to the sale of a recreational vehicle, manufactured dwelling or floating home:

(A) The landlord may seek to transfer ownership of record of the personal property by complying with the requirements of the appropriate state agency; and

(B) The landlord shall:

(i) Place a notice in a newspaper of general circulation in the county in which the recreational vehicle, manufactured dwelling or floating home is located. The notice shall state:

(I) That the recreational vehicle, manufactured dwelling or floating home is abandoned;

(II) The tenant’s and owner’s name, if of record or actually known to the landlord;

(III) The address and any space number where the recreational vehicle, manufactured dwelling or floating home is located, and any plate, registration or other identification number for a recreational vehicle or floating home noted on the certificate of title, if actually known to the landlord;

(IV) Whether the sale is by private bidding or public auction;

(V) Whether the landlord is accepting sealed bids and, if so, the last date on which bids will be accepted; and

(VI) The name and telephone number of the person to contact to inspect the recreational vehicle, manufactured dwelling or floating home;

(ii) At a reasonable time prior to the sale, give a copy of the notice required by sub-subparagraph (i) of this subparagraph to the tenant and to any lienholder and owner, by personal delivery or first class mail, except that for any lienholder, mail service must be by first class mail with certificate of mailing;

(iii) Obtain an affidavit of publication from the newspaper to show that the notice required under sub-subparagraph (i) of this subparagraph ran in the newspaper at least one day in each of two consecutive weeks prior to the date scheduled for the sale or the last date bids will be accepted; and

(iv) Obtain written proof from the county that all property taxes and assessments on the manufactured dwelling or floating home have been paid or, if not paid, that the county has authorized the sale, with the sale proceeds to be distributed pursuant to subsection (13) of this section;

(b) Destroy or otherwise dispose of the personal property if the landlord determines that:

(A) For a manufactured dwelling or floating home, the current market value of the property is $8,000 or less as determined by the county assessor; or

(B) For all other personal property, the reasonable current fair market value is $500 or less or so low that the cost of storage and conducting a public sale probably exceeds the amount that would be realized from the sale; or

(c) Consistent with paragraphs (a) and (b) of this subsection, sell certain items and destroy or otherwise dispose of the remaining personal property.

(11)(a) A public or private sale authorized by this section must:

(A) For a recreational vehicle, manufactured dwelling or floating home, be conducted consistent with the terms listed in subsection (10)(a)(B)(i) of this section. Every aspect of the sale including the method, manner, time, place and terms must be commercially reasonable; or

(B) For all other personal property, be conducted under the provisions of ORS 79.0610.

(b) If there is no buyer at a sale of a manufactured dwelling or floating home, the personal property is considered to be worth $8,000 or less, regardless of current market value, and the landlord shall destroy or otherwise dispose of the personal property.

(12) Notwithstanding ORS 446.155 (1) and (2), unless a landlord intentionally misrepresents the condition of a manufactured dwelling or floating home, the landlord is not liable for the condition of the dwelling or home to:

(a) A buyer of the dwelling or home at a sale pursuant to subsection (10)(a) of this section, with or without consideration; or

(b) A person or nonprofit organization to whom the landlord gives the dwelling or home pursuant to subsection (1)(b), (10)(b) or (11)(b) of this section.

(13)(a) The landlord may deduct from the proceeds of the sale:

(A) The reasonable or actual cost of notice, storage and sale; and

(B) Unpaid rent.

(b) If the sale was of a manufactured dwelling or floating home, after deducting the amounts listed in paragraph (a) of this subsection, the landlord shall remit the remaining proceeds, if any, to the county tax collector to the extent of any unpaid property taxes and assessments owed on the dwelling or home.

(c) If the sale was of a recreational vehicle, manufactured dwelling or floating home, after deducting the amounts listed in paragraphs (a) and (b) of this subsection, if applicable, the landlord shall remit the remaining proceeds, if any, to any lienholder to the extent of any unpaid balance owed on the lien on the recreational vehicle, dwelling or home.

(d) After deducting the amounts listed in paragraphs (a), (b) and (c) of this subsection, if applicable, the landlord shall remit to the tenant or owner the remaining proceeds, if any, together with an itemized accounting.

(e) If the tenant or owner cannot after due diligence be found, the landlord shall deposit the remaining proceeds with the county treasurer of the county in which the sale occurred. If not claimed within three years, the deposited proceeds revert to the general fund of the county and are available for general purposes.

(14) The county tax collector shall cancel all unpaid property taxes and assessments owed on a manufactured dwelling or floating home, as provided under ORS 311.790, only under one of the following circumstances:

(a) The landlord disposes of the manufactured dwelling or floating home after a determination described in subsection (10)(b) of this section.

(b) There is no buyer of the manufactured dwelling or floating home at a sale described under subsection (11) of this section.

(c)(A) There is a buyer of the manufactured dwelling or floating home at a sale described under subsection (11) of this section;

(B) The current market value of the manufactured dwelling or floating home is $8,000 or less; and

(C) The proceeds of the sale are insufficient to satisfy the unpaid property taxes and assessments owed on the dwelling or home after distribution of the proceeds pursuant to subsection (13) of this section.

(d)(A) The landlord buys the manufactured dwelling or floating home at a sale described under subsection (11) of this section;

(B) The current market value of the manufactured dwelling or floating home is more than $8,000;

(C) The proceeds of the sale are insufficient to satisfy the unpaid property taxes and assessments owed on the manufactured dwelling or floating home after distribution of the proceeds pursuant to subsection (13) of this section; and

(D) The landlord disposes of the manufactured dwelling or floating home.

(15) The landlord is not responsible for any loss to the tenant, lienholder or owner resulting from storage of personal property in compliance with this section unless the loss was caused by the landlord’s deliberate or negligent act. In the event of a deliberate and malicious violation, the landlord is liable for twice the actual damages sustained by the tenant, lienholder or owner.

(16) Complete compliance in good faith with this section shall constitute a complete defense in any action brought by a tenant, lienholder or owner against a landlord for loss or damage to such personal property disposed of pursuant to this section.

(17) If a landlord does not comply with this section:

(a) The tenant is relieved of any liability for damage to the premises caused by conduct that was not deliberate, intentional or grossly negligent and for unpaid rent and may recover from the landlord up to twice the actual damages sustained by the tenant;

(b) A lienholder or owner aggrieved by the noncompliance may recover from the landlord the actual damages sustained by the lienholder or owner. ORS 90.255 does not authorize an award of attorney fees to the prevailing party in any action arising under this paragraph; and

(c) A county tax collector aggrieved by the noncompliance may recover from the landlord the actual damages sustained by the tax collector, if the noncompliance is part of an effort by the landlord to defraud the tax collector. ORS 90.255 does not authorize an award of attorney fees to the prevailing party in any action arising under this paragraph.

(18) In the case of an abandoned recreational vehicle, manufactured dwelling or floating home, the provisions of this section regarding the rights and responsibilities of a tenant to the abandoned vehicle, dwelling or home also apply to any lienholder except that the lienholder may not sell or remove the vehicle, dwelling or home unless:

(a) The lienholder has foreclosed its lien on the recreational vehicle, manufactured dwelling or floating home;

(b) The tenant or a personal representative or designated person described in subsection (20) of this section has waived all rights under this section pursuant to subsection [(24)] (25) of this section; or

(19)(a) In the case of an abandoned manufactured dwelling or floating home but not including a dwelling or home abandoned following a termination pursuant to ORS 90.429 and except as provided by subsection (20)(d) and (e) of this section, if a lienholder makes a timely response to a notice of abandoned personal property pursuant to subsections (6) and (8) of this section and so requests, a landlord shall enter into a written storage agreement with the lienholder providing that the dwelling or home may not be sold or disposed of by the landlord for up to 12 months. A storage agreement entitles the lienholder to store the personal property on the previously rented space during the term of the agreement, but does not entitle anyone to occupy the personal property.

(b) The lienholder’s right to a storage agreement arises upon the failure of the tenant, owner or, in the case of a deceased tenant, the personal representative, designated person, heir or devisee to remove or sell the dwelling or home within the allotted time.

(c) To exercise the right to a storage agreement under this subsection, in addition to contacting the landlord with a timely response as described in paragraph (a) of this subsection, the lienholder must enter into the proposed storage agreement within 60 days after the landlord gives a copy of the agreement to the lienholder. The landlord shall give a copy of the proposed storage agreement to the lienholder in the same manner as provided by subsection (4)(b) of this section. The landlord may include a copy of the proposed storage agreement with the notice of abandoned property required by subsection (4) of this section. A lienholder enters into a storage agreement by signing a copy of the agreement provided by the landlord and personally delivering or mailing the signed copy to the landlord within the 60-day period.

(d) The storage agreement may require, in addition to other provisions agreed to by the landlord and the lienholder, that:

(A) The lienholder make timely periodic payment of all storage charges, as described in subsection (7)(d) of this section, accruing from the commencement of the 45-day period described in subsection (6) of this section. A storage charge may include a utility or service charge, as described in ORS 90.510 (8), if limited to charges for electricity, water, sewer service and natural gas and if incidental to the storage of personal property. A storage charge may not be due more frequently than monthly;

(B) The lienholder pay a late charge or fee for failure to pay a storage charge by the date required in the agreement, if the amount of the late charge is no greater than for late charges described in the rental agreement between the landlord and the tenant; and

(C) The lienholder maintain the personal property and the space on which the personal property is stored in a manner consistent with the rights and obligations described in the rental agreement between the landlord and the tenant.

(e) During the term of an agreement described under this subsection, the lienholder has the right to remove or sell the property, subject to the provisions of the lien. Selling the property includes a sale to a purchaser who wishes to leave the dwelling or home on the rented space and become a tenant, subject to any conditions previously agreed to by the landlord and tenant regarding the landlord’s approval of a purchaser or, if there was no such agreement, any reasonable conditions by the landlord regarding approval of any purchaser who wishes to leave the dwelling or home on the rented space and become a tenant. The landlord also may condition approval for occupancy of any purchaser of the property upon payment of all unpaid storage charges and maintenance costs.

(f)(A) If the lienholder violates the storage agreement, the landlord may terminate the agreement by giving at least 90 days’ written notice to the lienholder stating facts sufficient to notify the lienholder of the reason for the termination. Unless the lienholder corrects the violation within the notice period, the agreement terminates as provided and the landlord may sell or dispose of the dwelling or home without further notice to the lienholder.

(B) After a landlord gives a termination notice pursuant to subparagraph (A) of this paragraph for failure of the lienholder to pay a storage charge and the lienholder corrects the violation, if the lienholder again violates the storage agreement by failing to pay a subsequent storage charge, the landlord may terminate the agreement by giving at least 30 days’ written notice to the lienholder stating facts sufficient to notify the lienholder of the reason for termination. Unless the lienholder corrects the violation within the notice period, the agreement terminates as provided and the landlord may sell or dispose of the property without further notice to the lienholder.

(C) A lienholder may terminate a storage agreement at any time upon at least 14 days’ written notice to the landlord and may remove the property from the rented space if the lienholder has paid all storage charges and other charges as provided in the agreement.

(g) Upon the failure of a lienholder to enter into a storage agreement as provided by this subsection or upon termination of an agreement, unless the parties otherwise agree or the lienholder has sold or removed the manufactured dwelling or floating home, the landlord may sell or dispose of the property pursuant to this section without further notice to the lienholder.

(20) If the personal property consists of an abandoned manufactured dwelling or floating home and is considered abandoned as a result of the death of a tenant who was the only tenant and who owned the dwelling or home, this section applies, except as follows:

(a) Any personal representative named in a will or appointed by a court to act for the deceased tenant or any person designated in writing by the tenant to be contacted by the landlord in the event of the tenant’s death has the same rights and responsibilities regarding the abandoned dwelling or home as a tenant.

(b) The notice required by subsection (3) of this section must be:

(A) Sent by first class mail to the deceased tenant at the premises; and

(B) Personally delivered or sent by first class mail to any personal representative or designated person if actually known to the landlord.

(c) The notice described in subsection (5) of this section must refer to any personal representative or designated person, instead of the deceased tenant, and must incorporate the provisions of this subsection.

(d) If a personal representative, designated person or other person entitled to possession of the property, such as an heir or devisee, responds by actual notice to a landlord within the 45-day period provided by subsection (6) of this section and so requests, the landlord shall enter into a written storage agreement with the representative or person providing that the dwelling or home may not be sold or disposed of by the landlord for up to 90 days or until conclusion of any probate proceedings, whichever is later. A storage agreement entitles the representative or person to store the personal property on the previously rented space during the term of the agreement, but does not entitle anyone to occupy the personal property. If such an agreement is entered, the landlord may not enter a similar agreement with a lienholder pursuant to subsection (19) of this section until the agreement with the personal representative or designated person ends.

(e) If a personal representative or other person requests that a landlord enter into a storage agreement, subsection (19)(c), (d) and (f)(C) of this section applies, with the representative or person having the rights and responsibilities of a lienholder with regard to the storage agreement.

(f) During the term of an agreement described under paragraph (d) of this subsection, the representative or person has the right to remove or sell the dwelling or home, including a sale to a purchaser or a transfer to an heir or devisee where the purchaser, heir or devisee wishes to leave the dwelling or home on the rented space and become a tenant, subject to any conditions previously agreed to by the landlord and tenant regarding the landlord’s approval for occupancy of a purchaser, heir or devisee or, if there was no such agreement, any reasonable conditions by the landlord regarding approval for occupancy of any purchaser, heir or devisee who wishes to leave the dwelling or home on the rented space and become a tenant. The landlord also may condition approval for occupancy of any purchaser, heir or devisee of the dwelling or home upon payment of all unpaid storage charges and maintenance costs.

(g) If the representative or person violates the storage agreement, the landlord may terminate the agreement by giving at least 30 days’ written notice to the representative or person stating facts sufficient to notify the representative or person of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the agreement terminates as provided and the landlord may sell or dispose of the dwelling or home without further notice to the representative or person.

(h) Upon the failure of a representative or person to enter into a storage agreement as provided by this subsection or upon termination of an agreement, unless the parties otherwise agree or the representative or person has sold or removed the manufactured dwelling or floating home, the landlord may sell or dispose of the property pursuant to this section without further notice to the representative or person.

(21) If a governmental agency determines that the condition of a manufactured dwelling, floating home or recreational vehicle abandoned under this section constitutes an extreme health or safety hazard under state or local law and the agency determines that the hazard endangers others in the immediate vicinity and requires quick removal of the property, the landlord may sell or dispose of the property pursuant to this subsection. The landlord shall comply with all provisions of this section, except as follows:

(a) The date provided in subsection (6) of this section by which a tenant, lienholder, owner, personal representative or designated person must contact a landlord to arrange for the disposition of the property must be not less than 15 days after personal delivery or mailing of the notice required by subsection (3) of this section.

(b) The date provided in subsections (8) and (9) of this section by which a tenant, lienholder, owner, personal representative or designated person must remove the property must be not less than seven days after the tenant, lienholder, owner, personal representative or designated person contacts the landlord.

(c) The notice required by subsection (3) of this section must be as provided in subsection (5) of this section, except that:

(A) The dates and deadlines in the notice for contacting the landlord and removing the property must be consistent with this subsection;

(B) The notice must state that a governmental agency has determined that the property constitutes an extreme health or safety hazard and must be removed quickly; and

(d) If the tenant, a lienholder, owner, personal representative or designated person does not remove the property within the time allowed, the landlord or a buyer at a sale by the landlord under subsection (11) of this section shall promptly remove the property from the facility.

(e) A landlord is not required to enter into a storage agreement with a lienholder, owner, personal representative or designated person pursuant to subsection (19) of this section.

(22)(a) If an official or agency referred to in ORS 453.876 notifies the landlord that the official or agency has determined that all or part of the premises is unfit for use as a result of the presence of an illegal drug manufacturing site involving methamphetamine, and the landlord complies with this subsection, the landlord is not required to comply with subsections (1) to (21) and (23) to (26) of this section with regard to personal property left on the portion of the premises that the official or agency has determined to be unfit for use.

(b) Upon receiving notice from an official or agency determining the premises to be unfit for use, the landlord shall promptly give written notice to the tenant as provided in subsection (3) of this section. The landlord shall also attach a copy of the notice in a secure manner to the main entrance of the dwelling unit. The notice to the tenant shall include a copy of the official’s or agency’s notice and state:

(A) That the premises, or a portion of the premises, has been determined by an official or agency to be unfit for use due to contamination from the manufacture of methamphetamine and that as a result subsections (1) to (21) and (23) to (26) of this section do not apply to personal property left on any portion of the premises determined to be unfit for use;

(B) That the landlord has hired, or will hire, a contractor to assess the level of contamination of the site and to decontaminate the site;

(C) That upon hiring the contractor, the landlord will provide to the tenant the name, address and telephone number of the contractor; and

(D) That the tenant may contact the contractor to determine whether any of the tenant’s personal property may be removed from the premises or may be decontaminated at the tenant’s expense and then removed.

(c) To the extent consistent with rules of the Department of Human Services, the contractor may release personal property to the tenant.

(d) If the contractor and the department determine that the premises or the tenant’s personal property is not unfit for use, upon notification by the department of the determination, the landlord shall comply with subsections (1) to (21) and (23) to (26) of this section for any personal property left on the premises.

(e) Except as provided in paragraph (d) of this subsection, the landlord is not responsible for storing or returning any personal property left on the portion of the premises that is unfit for use.

[(22)] (23) In the case of an abandoned recreational vehicle, manufactured dwelling or floating home that is owned by someone other than the tenant, the provisions of this section regarding the rights and responsibilities of a tenant to the abandoned vehicle, dwelling or home also apply to that owner, with regard only to the vehicle, dwelling or home, and not to any goods left inside or outside the vehicle, dwelling or home.

[(23)] (24) In the case of an abandoned motor vehicle, the procedure authorized by ORS 98.830 and 98.835 for removal of abandoned motor vehicles from private property may be used by a landlord as an alternative to the procedures required in this section.

[(24)(a)] (25)(a) A landlord may sell or dispose of a tenant’s abandoned personal property without complying with [the provisions of this] subsections (1) to (24) and (26) of this section if, after termination of the tenancy or no more than seven days prior to the termination of the tenancy, the following parties so agree in a writing entered into in good faith:

(A) The landlord;

(B) The tenant, or for an abandonment as the result of the death of a tenant who was the only tenant, the personal representative, designated person or other person entitled to possession of the personal property, such as an heir or devisee, as described in subsection (20) of this section; and

(b) A landlord may not, as part of a rental agreement, require a tenant, a personal representative, a designated person or any lienholder or owner to waive any right provided by this section.

[(25)] (26) Until personal property is conclusively presumed to be abandoned under subsection (9) of this section, a landlord does not have a lien pursuant to ORS 87.152 for storing the personal property.

SECTION 35. ORS 105.148 is amended to read:

105.148. (1)(a) To contest a plaintiff’s affidavit of noncompliance under ORS 105.146 and delay expiration of the notice of restitution period or execution upon the judgment of restitution, a defendant shall file a request for hearing with the clerk of the court. The request must be filed prior to issuance by the clerk of a writ of execution of judgment of restitution and must include a statement by the defendant describing how the defendant complied with the order or describing why the defendant should not be required to comply.

(b) A court may, as part of the procedure authorized by ORS 105.146 (6), require that a defendant submit a hearing request to the court for ex parte review prior to the defendant’s filing the request with the clerk. If the court provides for ex parte review, the ex parte review must be available every judicial day for appearance by the defendant before the court within the time period between service of the notice of restitution and the date of expiration of the notice of restitution. The notice of restitution must include or have attached to it a description of the requirements for appearing before the court for ex parte review and a copy of the hearing request form. The court may not require that the defendant notify the plaintiff of the defendant’s intention to appear before the court. If, after hearing the defendant at the ex parte review, the court finds that the reasons given by the defendant for opposing the plaintiff’s affidavit of noncompliance do not relate to the issues listed in ORS 105.149 (2), the court shall deny the request for a hearing.

(2) The clerk shall make available a document providing for a request for hearing by a defendant. The document must be in substantially the following form:

______________________________________________________________________________

IN THE CIRCUIT COURT

FOR THE COUNTY OF

________________

Defendant’s Request for Hearing to

Contest an Affidavit of Noncompliance

Case No. _____________

Landlord or agent (Plaintiff):

______________________

vs.

Tenant/Occupant (Defendant):

______________________

Address of Property:

______________________

1. My landlord has filed a statement with the court saying that I have not complied with a court-approved agreement and that as a result my landlord is entitled to possession of the property.

2. I deny the landlord is entitled to possession of the property because (The reason must be one of the following. You must check one or more of these responses and you must explain in section 3.):

___a. The landlord is wrong. As explained below, I did comply with the agreement.

___b. Before I could comply with the agreement, the landlord was supposed to do what is explained below, which the landlord did not do.

___c. The landlord and I changed the agreement and I complied with the agreement as changed. The change we agreed to is explained below.

___d. The landlord prevented me from keeping the agreement. The way the landlord did that is explained below.

___e. The agreement was not made in good faith as required by ORS 90.130. The lack of good faith is explained below.

___f. The portion of the agreement described below was unconscionable as described in ORS 90.135.

___g. The landlord is required by law or contract to have good cause to force me to move out and my alleged conduct or performance does not meet the standard of good cause, as explained below.

___h. The landlord is claiming I did not pay rent for a period of time following the date of the agreement. I did not pay that rent because I have claims for money against the landlord to offset the rent. Those claims arise from the landlord’s violation of the Residential Landlord and Tenant Act or the rental agreement since the date of the court order and are explained below.

3. Here is my explanation for the reason or reasons checked above:

____________________________

4. I understand that if I lose in court, I may be responsible for the landlord’s costs, disbursements, any attorney fees and a prevailing party fee.

I swear the above statements are true.

____________________

(Signature of tenant)

Subscribed and sworn to before me this ___ day of ________________, 2___.

Trial court administrator / clerk / notary

______________________________________

______________________________________________________________________________

SECTION 36. ORS 105.149 is amended to read:

105.149. (1) Upon receipt of a timely filed request for hearing described in ORS 105.148, the clerk of the court [shall]:

(a) Shall schedule a hearing on the defendant’s request as soon as practicable;

(b) Shall notify both parties of the hearing date; [and]

(d) May not issue a writ of execution of judgment of restitution pending the hearing.

(2)(a) At the hearing, except as provided in paragraph (b) of this subsection, the court may consider only the following issues:

(A) Whether the defendant complied with the order.

(B) Whether the plaintiff complied with any requirement of the order that is a predicate to compliance by the defendant.

(D) Whether one party unfairly prevented compliance by the other party.

(b) If ORS chapter 90 applies to a dwelling unit, in addition to the issues described in paragraph (a) of this subsection, the court may consider the following issues:

(A) Whether the stipulated agreement was entered into in good faith as required by ORS 90.130 or is unconscionable as described in ORS 90.135.

(B) Whether, for a defendant whose noncompliance concerns performance or conduct, the noncompliance constitutes good cause for purposes of an applicable law or contract that requires the plaintiff to have good cause for terminating the tenancy.

(C) Whether, for a defendant whose noncompliance concerns a failure to pay rent due for future rental periods pursuant to ORS 105.146 (2)(c), the defendant has claims against the plaintiff for moneys that offset the rent. The defendant’s claims must be pursuant to ORS chapter 90 or the rental agreement and must have arisen after the entry of the order.

(c) The defendant may not raise defenses or claims involving issues other than issues described in paragraphs (a) and (b) of this subsection.

(3) If the court finds in favor of the plaintiff after the hearing, the clerk may issue a writ of execution of judgment of restitution. If the defendant did not appear at the hearing, the clerk may issue the writ immediately. If the defendant did appear, the clerk may issue the writ no earlier than 24 hours after the court’s ruling. Further notice to the defendant is not required.

(4) If the court finds in favor of the defendant after the hearing, the court shall set aside the judgment. The court may reinstate the order, terminate the order and enter a judgment dismissing the plaintiff’s action in favor of the defendant, enter a new order or schedule a trial on the plaintiff’s action as soon as practicable.

SECTION 37. ORS 105.156 is amended to read:

105.156. The writ of execution of judgment of restitution referred to in ORS 105.151 must be in substantially the following form:

______________________________________________________________________________

State of Oregon, ) WRIT OF

) ss. EXECUTION OF

) JUDGMENT OF

) RESTITUTION

County of ______ )

To the Sheriff:

This was an eviction action for possession of the following premises:

___________________________________

___________________________________ (city)

___________________________________(county)

Judgment was [rendered on _____ (date)] entered that the plaintiff have restitution of the premises [on or after _____ (date), and also that the plaintiff recover costs and disbursements in the sum of $____] and that the plaintiff may be entitled to court costs and disbursements.

In the name of the State of Oregon, you are ordered to enforce and serve this writ on the defendant, in the manner provided in ORS 105.161 (1), after the four-day period provided in the notice of restitution.

If the defendant has not moved out of the premises by the end of the four-day period or any delay requested by the plaintiff, whichever is later, and if the plaintiff has paid all fees for enforcement of this execution, you shall immediately make legal service of this writ and an eviction trespass notice on the defendant. You shall remove the defendant and any other person subject to the judgment, if present, from the premises and return possession of the premises to the plaintiff.

The plaintiff shall be responsible for removing, storing and disposing of any personal property left by the defendant on the premises following the removal of the defendant and the return of possession of the premises, as provided by ORS 105.165.

DATED this ____ day of _________, ____.

______________________

Deputy Court Administrator

______________________

Plaintiff

______________________

Address

______________________

City/State/Zip

______________________________________________________________________________

SECTION 38. (1) Notwithstanding the amendments to ORS 105.124 by section 29 of this 2005 Act, prior to January 1, 2007, a clerk of the court may use either the complaint form set forth in ORS 105.124 as published in the 2003 Edition of Oregon Revised Statutes or the form set forth in ORS 105.124 as amended and in effect on the effective date of this 2005 Act.

(2) Notwithstanding the amendments to ORS 105.156 by section 37 of this 2005 Act, prior to January 1, 2007, a clerk of the court may use either the form set forth in ORS 105.156 as published in the 2003 Edition of Oregon Revised Statutes or the form set forth in ORS 105.156 as amended and in effect on the effective date of this 2005 Act when issuing a writ of execution of judgment of restitution.

SECTION 39. ORS 90.400 is repealed.

SECTION 40. (1) Sections 7 to 12 of this 2005 Act, the amendments to ORS 90.140, 90.160, 90.243, 90.260, 90.265, 90.300, 90.302, 90.315, 90.322, 90.415, 90.429, 90.510, 90.545, 90.630, 90.632, 92.840, 105.115, 105.124 and 105.139 by sections 3 and 13 to 30 of this 2005 Act and the repeal of ORS 90.400 by section 39 of this 2005 Act do not affect the validity of any notice given by a landlord prior to the effective date of this 2005 Act or any action under ORS 105.105 to 105.168 based on a notice given by a landlord prior to the effective date of this 2005 Act.

(2) Section 31 of this 2005 Act applies to denials of applications occurring on or after the effective date of this 2005 Act.

(3) The amendments to ORS 90.425 by section 34 of this 2005 Act apply to property determined by an official or agency on or after the effective date of this 2005 Act to be unfit for use.

Approved by the Governor June 29, 2005

Filed in the office of Secretary of State June 29, 2005

Effective date January 1, 2006

__________